Originalist ‘Bombshell’ Complicates Case on Trump’s Power to Fire Officials

The Supreme Court will hear arguments in December about whether President Trump can fire government officials for any reason, or no reason, despite laws meant to shield them from politics.

There is little question that the court will side with the president. Its conservative majority has repeatedly signaled that it plans to adopt the “unitary executive theory,” which says the original understanding of the Constitution demands letting the president remove executive branch officials as he sees fit.

But a new article, from a leading originalist law professor, has complicated and perhaps upended the conventional wisdom. The legal academy treated the development like breaking news.

“Bombshell!” William Baude, a law professor at the University of Chicago who himself is a prominent originalist, wrote on social media. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.

Professor Nelson, who teaches at the University of Virginia and is a former law clerk to Justice Clarence Thomas, wrote that the text of the Constitution and the historical evidence surrounding it grants Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people.

Professor Nelson’s article was published Sept. 29 by the Democracy Project, an initiative at the New York University School of Law that plans to release 100 essays in 100 days by an ideologically mixed group.