Does Article II of the Constitution Grant the President Power to Fire Anyone in the Executive Branch?

From the National Constitution Center in Philadelphia, this is We The People. [MUSIC] I'm Tom Donnelly, a law professor at the University of Richmond and lead scholar here at the National Constitution Center. The National Constitution Center is a nonpartisan, non-profit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. In a pair of recent decisions, the Supreme Court addressed the president's authority to fire members of the executive branch. In Trump V. Slotter, writing for the majority Chief Justice John Roberts, read the president's removal power broadly, writing that those who fall within the president's general administrative control must be removable by the president at will. In a separate case, Trump V. Cook, the court then went on to uphold the Federal Reserve's four cause removal protection, allowing Lisa Cook, a member of the Feds Board of Governors, to remain in her job while President Trump's efforts to fire her move forward. To help us unpack the rulings, we are joined by two of the leading scholars of executive power. Michael Ramsey is the Warren Distinguished Professor of Law at the University of San Diego School of Law. Mike clerked for Judge Jay Clifford Wallace of the US Court of Appeals for the Ninth Circuit and for Justice Antonin Scalia of the US Supreme Court. He co-edited the book International Law in the US Supreme Court, Continuity and Change. He's authored numerous law review articles on the original meaning of various provisions of Article 2 of the Constitution. He is also a regular contributor to the originalism blog. Mike, it's wonderful to welcome you back to We The People. Well, Tom is great to be here. Thanks for having me. Jed Sugarman is Professor and Henry L. Wood Warren Scholar at Boston University School of Law. He is the author of several recent law review articles about the original meaning of Article 2, many of which were cited in Justice Sotomayor's dissent and slaughter. He is currently working on two books about the history of executive power and prosecution in America. Jed, it's wonderful to welcome you back to We The People as well. Thanks so much, Tom. I appreciate it. So we have two big decisions here. We have slaughter, we have cook. I think maybe we'll just take them in turn and see how far we can go with each, beginning with slaughter. And so maybe I'll turn to you first, Jed, you know, before we get into the rulings and a lot of the arguments there, can you just tell us what were the facts here? What happened in slaughter to lead to this case? So the background here is that when President Trump was reelected into a office, there were a series of firings from many different agencies, but some of those agencies were understood to be a century long or 130 year tradition of independent regulatory commissions. And Rebecca slaughter was one of them, but there were many that were going through the courts. And Rebecca slaughter was a commissioner on the Federal Trade Commission, which is significant because the precedent, the 90 year old unanimous 80 precedent that these commissions were based upon in terms of their constitutional legality was an opinion called Humphry's executor, Humphry's was a commissioner on the Federal Trade Commission. And that was who President Franklin Roosevelt removed from office. And so that it was the same commission being litigated. And frankly, there was a movement to overturn Humphry's executor for the last several decades that was revived around a series of arguments that I would most associate that revival with Justice Scalia from the 1980s. And then as it progressed through the courts, lower courts identified that Humphry's executor was the precedent that protected Rebecca slaughter. There was then a case called Wilcox about someone removed from the National Labor Relations Board that was also in the same bank. So they, different courts protected them along the way. A year ago, the Roberts Court in a shadow, quote unquote, shadow or lightning docket opinion said that Wilcox on the National Labor Relations Board could not stay in office pending litigation because in one paragraph, the shadow docket opinion said, because the executive power is vested in a president and that executive power must include removal that Wilcox should be removed. And that, I think, sent a signal and a preview of the main argument that the Supreme Court in a decision, in a six to three decision, relied on that example. But I think that is maybe one of the chief examples of the argument made there. So that was a six to three decision with chief justice Roberts writing a, what I would say is ostensibly an originalist. I'd actually say not a single historical argument in slaughter stands up to scrutiny. So thanks for that initial framing here, Jed. Mike, love to bring you in here to, you know, respond to anything Jed said there and also provide any additional framing context that you think is helpful for our listeners before we then dig into sort of the meat of the text, history, structure doctrine, all of the main tools in our interpretive toolkit. Yeah. So I think that Jed did a great job of sending the stage there. There's just a couple of things that I would add or maybe emphasize a little bit more. He mentioned Justice Scalia as sort of a central point in developing the modern attack on conference executor and the independent agencies, maybe I should just further add is the way the independent agencies, the reason that what makes these agencies independent is that the statutes that establish them or buy that the people who serve in the, the boards, the control agencies can only be removed by the president for cause. And that's going to become especially important in when we start talking about the cook case. So this issue came to the spring court back in the 1980s in the case called Morrison versus Olson, which was about the independent prosecutor, which also had this same four cause removal protection. And this was challenged by Ted Olson, one of the people at the independent prosecutors investigating once the spring court, an opinion by Justice Brehnquist said that this was fine, partly in reliance on the conference executor opinion that Ted, that Ted mentioned. And Justice Scalia wrote an impassioned and influential uncertain circles any way to set, saying that this was unconstitutional on the ground and violated R2, which said the executive power shall be vested in the president. Scalia famously said in that dissent, this does not mean some of the executive power. This means all of the executive power. And in his view, the four cause removal, limiting the president's ability to control the independent prosecutor, took some of that executive power away from the president. And this is really the foundation of the modern argument against the so-called independent agencies. And this was picked up by the Roberts Court most significantly in a case called CLL Law a couple of years ago, in which the Supreme Court, I would say, generally, embraced Scalia's dissad in Morrison as to an agency which was controlled by a single person. And he said it was in sale, and they said it was unconstitutional to have this four cause removal for an agency controlled by a single person. They reserved the question of what would happen if the agency was abored rather than a single person? They seemed to attach some importance to the single person. And that allowed them to distinguish the case of Humphrey's executive, which was about a board, the federal trade commission, rather than a single person. And so that's what got us to slaughter was it was a case that you're going to clean up that question of why is a board different from an agency headed by a single person. And then what the court's answer in slaughter was, well, actually, it's not different. And Humphrey's executive was just wrong about point. And so that's where we ended up. >> Excellent. Great framing. We have a statute passed by Congress setting up the federal trade commission. Importantly, federal trade commissioners have wore cause protection against removal by the president. We have President Trump trying to fire Rebecca Slotter, one of the FTC commissioners. And the broad question here being, under the constitution, how broadly does the president's removal power sweep versus how much power does Congress have to place tenure protections like for cause protection in destitutes? As Mike and Jed tell us, Drumpy Slotter ends up being a six to three decision by the Robert's Court, majority opinion by Chief Justice Roberts, who has written a lot of the recent cases dealing with the presidential removal powers, including civil law. And then we have a dissent, quite lengthy dissent by Justice Sotomayor or the three dissent managers. And really want to dig into the different forms of argument that we see the justices reaching for here. You've already mentioned doctrine. We'll get back to doctrine in a little bit. But what I love about this conversation is we have two of the nations leading originalist scholars. They can hopefully model for we the people listeners. How will originalists go about interpreting the constitution? I think what hopefully we'll see is that it allows for some apple to apple comparisons. There may be some methodological differences. between the two, there could be some differences in perspectives and conclusions, but they're all operating within the original list framework. So beginning where the chief begins, let's begin with the text and structure of the constitution. Maybe I'll give you each a turn. Maybe beginning with Mike, placing on the table, the key provisions, I think the chief stresses, he leads with the besting clause, which reads the executive power, which will be vested in a president of the United States of America. And another key provision often relied upon for those advancing similar positions to the chief justice, is the take care clause of Article II, which reads, the president shall take care that the laws be faithfully executed. Maybe talk a little bit about Mike, how you see the text and structure informing this question about the president's removal power. - Sure, thanks. So there are different flavors of originalism. And we may get into that to some extent, but in my view, the correct methodological flavor of originalism does indeed, as chief justice Roberts did, start with the text, and not just start with the text, but put the text very prominently front and center in terms of the interpretive enterprise, is to decide what does that text mean, or what it did that text mean, at the time it was adopted, in the context in which it was adopted. So this doesn't exclude history at all as something to look at, but it does mean you start off with the text. And if the text is reasonably clear, then you're gonna need something very strong to overcome it. And I think that's where Scalia started in the Morrison case that I mentioned that I think is really the foundation of all of this analysis, and Roberts is picking up on that and going with it. And I think that's correct. Article two starts off by saying, the executive power is vested in the president. And I think that is an unmistakable, negative implication of that, that the executive power cannot be vested in anyone else. And then the question is, well, how then is it possible to have an executive branch in a bunch of other people who are obviously exercising executive power or what the people work for, the executive branch exercising executive power? And the answer is those people have to derive their power from the president, and thus the president has to be able to control them. Otherwise, they are independently exercising executive power. And indeed, the whole idea of the independent agency rests on the proposition that the independent agencies were independent from whom, independent from the president, meaning that they independently exercise executive power. But the problem is, I mean, that may be a sensible structure as a policy matter, for sure. I'm not getting into the policy here, but just on the way the text is written, it seems to preclude that structure because all of the executive power must be vested in the president. And so it cannot be invested in anyone else unless the president fully controls that person. And when a person can only be removed for cause, which is a fairly demanding standard, then the president does not have full control over that person. And I think that's the textual argument. And I think it's largely conclusive. Now, the take care cause that you mentioned adds a little bit to that. In my view, it doesn't add that much. Some people rely on it more heavily than I would. And that's really a dead. But the take care cause saying that the president has the obligation to enforce the laws. And the implication of that is that if you have the obligation to force the laws, you must also have the power to force the laws. And so it reinforces the grant of executive power to the president in Article 2, Section 1. And behind this is the whole structure of the separation of powers of three branches and only three branches, a legislative branch controlled by Congress, judicial branch, controlled by the courts, and an executive branch controlled by a single person, the president. And that's the structural and textual argument that Robins is relying on. But it derives directly from school years to set in Morrison versus Olsen. And I think in terms of originalism, that's absolutely the right place to start in the right way to develop the argument now. It's subject to some historical rebuttals that you'll hear from Professor Sugarman. But in my view, methodologically, this is exactly the right way to do it. It is a kind of touch-dressed driven originalism that not all originalists subscribe to. But I do think it's the prevailing view among modern what's called public meaning originalists. And so I think Robins is picking up on that and I think he is deploying it correctly in the slaughter opinion. - And to bring you in here, Judd, give you a chance to respond. Both of the methodological point here that I think Mike is making about the relative primacy of text versus history from originalist perspective. And then more broadly, you have a series of textual arguments that you make about the presidential removal power, bringing in the investing, saying something about the vesting clause, take care clause. But you also give primacy to article ones necessary and proper clause. So love to hear both a response to the methodological end. And then broadly, you're reading of text and structure and how it informs this question about the removal power. - Great, thanks Tom. And I want to start off by saying that I've appreciated how Mike has been sort of an open-minded reader. We've been reading each other's work for years. And so this is part of an ongoing conversation we've had. And I find Mike to be one of the most careful and open-minded interlocutors on this debate. And so he knows some of what I'm about to say. And methodologically, Mike and I both identify as original public, meaning originalists. In fact, on the birthright citizenship debate, we both wrote articles about making original arguments. And Justice Jackson cited one of my articles. And I feel a little guilty about it because I was relying on Mike's chief work. She should have been citing Mike first before me. I added some things to the debate. But I think we have the same methodological commitment. And I think this might show some of the differences in the way that we go about it. And I really don't mean this to sound too pejorative, but I think it is an important observation that people from across the spectrum, including some prominent conservatives, are making of the Roberts Court in particular about the argument that we just heard. That these kinds of arguments are penumbra and emanations argument from the text, the leaping from the text. And some of the critics of the Roberts Court are none other than conservative originalists like Sharif Gurgis, Notre Dame. And even Richard Ray at Harvard Law School wrote an article called something like towards a conservative Warren Court, where the Roberts Court finds a word and then without evidence. And let me underscore that. Without evidence, without historical evidence, uses that word as a prompt. And another critic of the initial executive theory, Christine Shabo has called this article two vibes. So and Mike knows this evidence because I presented it. And I dug into this question along with other scholars because this argument begs a giant question. One, did in fact, executive power imply removal in the 18th century? And even if it-- let's say you find that it did imply unconditional, indefisible removal in the 18th century, and I and other scholars have demonstrated overwhelmingly and conclusively that executive power did not imply removal. How do we know that? One, the Federalist Papers, both James Madison and Alexander Hamilton wrote Federalist 39, Madison, wrote Federalist No. 77, Hamilton. And if there's any confusion about it, Hamilton told the world in a note in the first Congress that, indeed, he met what he wrote, that the Senate would be required to remove. Why is this a problem? Because first of all, the executive power changed from whatever the background was through the writing of the Constitution. It turns out Mike knows this. The appointment power was a royal executive power in England. But it did not become an executive power in Article II. The office creation was a royal executive power, but Article II assigned that to Congress. Declaring war was an executive power in England. So then the argument might be, well, anything that had to be spelled out in order to separate it. But wait, why did the founders put the pardon power and the commander-in-chief power, OK? So they explicitly debated and put in executive powers that were traditional. Sometimes they gave them to article two presidency. Sometimes they gave them to the Congress. Sometimes they gave them to the Senate. So this is an unknown question. What else they did in article one is they used the necessary and proper clause. None other than conservative originalist Gary Lawson, my co-author on an article, we're publishing an article in the Northwestern Law Review for presidential removal as article one, not article two. Because it's the same clause that mentions the necessary and proper clause that talks about Congress's power to create offices. But I'll say one more thing about this. And if I may, I'll just note that people who have read this article of mine, Vanality, this was cited by Justice Sotomayor, and she got it right. That it turned out that even if one thinks that in England there was a removal power, it's just not true. In England, even the members of the cabinet were sometimes protected from removal with offices for life. Many powerful officers, especially in treasury, had unremovable offices for life. And none other than Madison repeats that common law background in the federalist papers. So this, so I think Mike's premise here is more like penumbra emanation vibes, whereas I'm turning to actual evidence from the founding era and ratification to answer that question. - So Mike, those are some fighting words, penumbras and emanations. And some historical evidence that Jed brings here that also Justice Sotomayor relied upon in her descent, left to hear, you know, your response to any and all of the points Judges made. - Sure, well, yeah, penumbras and emanations, that is fighting words right there, or at least if I thought they fit, they'd be fighting words. But I just don't, and with all respect to Professor Curtis and some others who have made this argument, I just don't, I think it's sort of a, you know, using these words to describe a situation that just is not the same. The argument is not that it's going beyond the, that my argument or that's clear as arguments, it's very, very argument, I call it beyond the text and seeking some kind of an emanation. It's rather centered directly on the text, which says that again, that the exacty power is vested in the present. And the, in my view, the other side actually has no real argument as to what that means if it doesn't mean what Descored and Justice Sotomayor said emanates. What could it mean to say that the executive power is vested in the present? If, in fact, some important aspects of the executive power are not actually vested in the present. How could that be consistent? I don't understand the theory. So I don't think this is departing from the text at all. I think it's anchored directly on the text. Now, just a couple of quick points on what Jed said, particularly I think is important. And he's right about this that the historical record is not as clean as one would like it to be in terms of pointy in one direction or the other. There were debates about this in the founding era. And there was not a consensus. I think that's Jed and other scholars have established that. And I don't think there's a contrary view that works to say that there was absolutely a consensus. What I would say is that, do say, first of all, the principle of contrary view, that is contrary to the fact that the power was vested in the president was Hamilton's view in the Federals that Jed mentioned that actually the Senate would have power to prove remorse. And that was understood by some people to be what the Constitution indicated. But that's not an argument that has any currency at all today. And I think we understand now that that argument is not actually work for various reasons. It's not the argument on which the opposition to cases likes to lobby standard. So I think that was sort of a view of the founding era, but it was not accepted. The other thing I know, and I know that it's going to set Jed off a little bit, but I'm going to say it anyway, which is that in the congressional debates immediately after the Constitution is ratified, Madison did advance the argument that precisely centered on the Vesting Clause that said the president would have full removal power. Exactly the argument was later in the modern era picked up by Scalia and then by the Roberts court. Now, I'm not saying that's authoritative in the sense that it represented the only view that existed in the founding era. But when Jed says there's no historical support, that's I think that's not true because there wasn't understanding of the executive power as encompassing complete control of the executive branch. Final thing I'll say is on the necessary proper argument, I do think that's an important textual argument has to be met by people who are making textual arguments. But I think the answer to that is that the necessary proper cause, an important limit on what Congress can do pursuant to the necessary proper cause, is that Congress can't change the structure set forth in the Constitution. So Congress can't change the way it in acts builds. That's the IAS versus Chateau case. And I've correctly decided that Congress can't change the way the president makes the pardon powers. Congress can't change the allocation of judicial power to the courts. Can't assign judicial power to some other entities. It can't change the life of tenure protections of the federal courts. The things that the Constitution sets forth in designing the structure of the government can't be changed by Congress pursuant to its necessary proper power. Because that's not a proper use of Congress's power. And so, while I do think the textual approach has to meet that argument, that's the way I would meet it, is that if you accept that the Article II, Section I, allocates the executive power to the president. And that's literally what it says. Then Congress cannot allocate executive power to anyone other than the president using a necessary proper power. - Thank you, Mike. Chad, to bring you back in, you know, we'd love to hear a little bit more about your affirmative necessary and proper clause argument and sort of how it would work. You know, an important response to Mike, but also just to lay it out for our listeners. And then we can turn to what it would often prove to be a vigorous debate over sort of the meaning of the decision of 1789. And what we should do, you know, as originalists with post ratification history. - Sure, thanks, Tom. I'm happy to pick right up with that question, because, you know, I want to make a couple of responses. But also, this is in the way that I'm appreciating how Mike has changed his views along the way. I do have a question of, you know, what argument, what evidence supports something that I identified before, the problem of identifying not only if there is an implied removal power, the question in these cases, which again, Mike did the very helpful thing at the outset of this, something I left out when I summarized these cases. Mike added the crucial aspect of the legal question in the case, it's not just whether a president has a power to remove. It's whether it is an unconditional power to remove. And that's a pretty heavy burden that I haven't heard Mike address. The question is, beyond whether the executive power clause implies some kind of removal, and this is work that half a dozen historians have done beyond the work I've done, chiefly Jane Manners and Lev Minande, about the history of those qualifications, whether good cause, or requiring the president to show inefficiency and neglect of duty or malfeasance. That's also a preview for cook. And so I haven't heard Mike address that. And it's a way that also the work I'm doing with, in the line of originalist work, again, with this, with a leading, originalist, conservative scholar, Gary Lawson, he has persuaded me, and I am now persuaded by the work I also do with co-authors, Andrew Kent, and Ethan Leib, on the Faithful Execution Clause, that one way to understand how to make all of this history and the text work together, is that there may be, and I think the evidence here is really fuzzy, but I'm willing, I think reading it all together, there, I think one can identify plausibly, that there was reading in the Faithful Execution, that this line of the Constitution that Roberts also misapplies and misunderstands out of context, that the president shall take care, that the laws be faithfully executed. That is, the work I did with Andrew Kent and Ethan Leib established that that was in its legal background, all the way back to the Magna Carta. as part of the Republican founding was that there was a duty of good faith and that duty of good faith also implied a power to supervise. So this is so my updated view in updating my priors and in reading Mike's work, I'm willing to say it is it is a valid argument to say that that part of article two was the president out of when the when there are good reasons, good faith reasons to prevent the constitution from being undermined, the president has to have an implied duty to remove. But here's the thing also relying on Michael McConnell, another conservative originalist, is that when the constitution implies powers in article two, this is what Michael McConnell says about another clause, about the opinions clause, is that it creates a defeasable power. It implies a power, but Congress can still set parameters on it. Now what Mike said about chata and structural limits, the Congress can't run roughshod over over the structure of powers, that's an argument about explicit powers, like the pardon power. That's why they're the conventional wisdom about the pardon power is that Congress can't say, you know, the president can't pardon murder. Well, why? Because it's an explicit power. The Congress can't undermine the commander in chief power. Why? It's an explicit power. I don't think anyone claims that there's any way to read into the constitution or removal power. So where do we get it from? It's an implication from faith's execution. But that comes from the idea of a fiduciary, it's a proto fiduciary duty that also has the same requirements of good faith and a way to understand good faith is you have to have good cause. Okay. So let me just, so I think my view with Gary Lawson is that we have persuaded each other, their constitution has in the president has an implicit duty to control and an implicit duty to a power to remove. But the Congress can establish as so long as those limits are proper, Congress can establish proper limits on presidential power. But those limits have to be proper. Okay. So then creating a secretary of defense for life or a secretary of treasury for life is an improper limit on the president's duty to faithfully execute the office. Okay. Let me say one more thing about what I meant by no evidence. I'm not saying that there aren't outliers or examples who have this argument. The point is when you collect the, when I went, I could break Robert's opinion into six parts, none or six originalist or quasi originalist arguments, none of those six arguments stand up to scrutiny because he's cherry picking examples. The last thing that Mike, I want to reply to about Madison is that it's, it's not just that Madison is an isolated example. It's that the quotations you're pulling or that others have pulled from Madison are isolated examples of Madison. So not only is original public meaning unclear about this issue as you acknowledge James Madison is unclear. Let me just be clear. Just explain this in the, in the convention Madison says that executive power implies nothing else than what the text says. That's when he uses the Latin phrase that the executive power is what it is an XV termity. And that's Madison in the convention. I just mentioned the federal's papers number 39 Madison endorses a congressional pal in in May of seven J nine Madison says I really used to think it was the Senate. I'm changing my mind. It might also be he gives all three versions of the debate for, for a couple of days in June Madison has this theory, not the indefesible theory, but just the article two theory that the president has a power to remove, never addresses it being indefesible. And by the way, Mike, just three days later when they talk about the treasury bill and are deciding up a comptroller, Madison proposes a comptroller who will be protected from presidential removal. So even Madison is a on balance is against the unitary executive theory. I definitely want to turn to, you know, some of the battles over post ratification history in slaughter and how we think of it as an originalist, but a final beat here on sort of text history and structure and, you know, Jed's prompt asking for sort of what's the strongest argument here for an unconditional power of removal and sort of any further thoughts on Jed and Gary Lawson's necessary and proper sort of gloss or reading on how to think about the removal power. Yeah, I think that one mistake that a lot of people make on this is that they think of that the removal power, we need to find a source of the removal power. And they look at the constitution, they say, isn't there any removal power in the constitution? So it must be some, this is where the emanations and penumbres come at it must be something sort of made up because it's really, it's not there in the text at all. And I just think that that's a wrong way of thinking about it because the question to my mind is it's not in the first instance, whether there's a removal power. But rather, it's a question of what does it mean to say that the executive power is vested in the president? And so what follows from that is the president must be able to control anyone who exercises executive power and what follows from that is that the president must have the ability to remove because the person has the ability to remove is the person that controls you. And if you are insulated as we academics who have tenure know well, if you're insulated from full threat or removal, then you are to a significant extent, an independent actor. Now, the dean of the law school does not fully control my exercise of power because I can only be removed for good cause through the tenure process. And similarly, if people exercising exact power had that kind of tenure protection, then the president would like the dean of a law school have difficulty fully controlling the people exercising the executive power. So I don't think that this is a separate power that we look for, where did it come from, but rather, it's just, it's inevitably intertwined with the idea that the executive power is entirely with the president. Now, again, I think this was not understood fully by old people in the founding era. And I think Madison, again, I don't disagree that Madison thought this over and is thinking evolved with regard to it. On the treasury, I think we'll talk about that when we get to, when we get to cook. But I think that Madison did settle on as to ordinary executive officers that they needed the president needed to have this control. And then just to transition from, I don't know, I guess we'll work on this or improper. I think that, so I do think the Congress could put some incidental limits on the president's exercise of removal power because I don't think that there's a single removal power that the Constitution grants. But I think is that the Constitution grants the president control over all executive activities. And Congress can't change that. Now I do think that you could have incidental restrictions. I think Congress wanted to say that the president has to notify Congress before he removes an executive officer, or they'd said the president has to give Congress an explanation for why he's removing. I think incidental restrictions like that could well flow from the necessary proper cause. So I think that there is something to what Jed is saying there. But once you've moved from something like that to a situation where the president really cannot control the exercise of executive power by someone other than the president, then you're just straight into the face of Article 2, Section 1. And I just don't see how people on the other side get around that. And then that allows me to transition to the Post-Ratification History, which I'll do very quickly because I know you want to tee this up. But the way I would tee it up is to say, I think that what the tax establishes is very strong. And then the question is, is there sufficient post-Ratification history to cause us to rethink that? And that, to burden in a sense, shifts to people who would use the Post-Ratification History to overturn what I understand to be a clear direction of the text. And I do think the Post-Ratification History is mixed. I don't think it's as mixed as the people on the other side say. But I don't think it's as clean as Chief Justice Roberts suggests this is in the slaughter opinion. And I don't think that matters because I think that the text is so strong, that the Post-Ratification History, which is inconclusive, in my view, isn't sufficient to overturn it. >> Yeah, just to sharpen that point, Mike, before-- turning to Jed and post ratification history here. So from your perspective, then, even early post ratification history like the first Congress, it's going to come into play for an originalist when sort of text and maybe structure are, to a certain extent, unclear. And so post ratification history can serve a clarificatory function in that context. But in your view, doesn't really serve much of any purpose if the text in particular and the structure are clear. Is that by summarizing that right or please revise whatever I said there, but just want to make sure I put it clearly on the table. Yeah, I think that's generally on the right track, although I think it might overstate a little bit. So when you read the text and the text itself is pretty clear, as I think it is in this case. And I also think Jed referred to the birthright citizenship case and can't help saying a word about that too, because I think that's an example also of where the text just staying on its own is pretty clear. So then I think what the originalist obligation to look is to look at post ratification history to make sure that you're not misreading the text, because the text may appear clear to us. But we're 200 years removed from it. We may just may not be understanding some words, the way that the people in the founding era would have. So I think we need to have some textual humility in saying that we just want to sort of cross check and make sure we're getting this right. But I think that when the text appears clear, then the burden shifts, as they said, to someone who would use the post ratification history and change it. Not to say that they couldn't change. If the post ratification history itself was absolutely clear, as an originalist, I would be worried. That is, it was absolutely clear, and it was absolutely opposed to what my initial reading of the text is. Then I would be pretty concerned about that situation, and I would be thinking, well, I may well be reading this wrong. But when your post ratification history is at best mixed, and you have some people reading it the way I would read the text, and you have some people reading it in a different way. And again, this is the post ratification history of the birthright citizenship. Provision is quite similar to this, actually. The some people read it the way it seems most naturally read to me, and some people read it differently. But when the text is clear, I think you need something more out of the post ratification history. Just then real quick to say, in contrast, where the text is itself ambiguous. I think the post ratification evidence is much more important. When the text is, I guess what I would say when the text is sort of obscure, when it's just unclear what they were talking about, and there are plenty of provisions that constitutions are like this. I just don't think the best thing causes one of them, but I think there's fine. And then the post ratification history is much more important, because when we look at the text and we're scratching, we had to say, I have no idea what they were talking about here. Then it's a lot more can be gleaned from post ratification history. So some originalists are very down on post ratification history. I have a more intermediate position on it. - Excellent. And to bring you in here, Judd, I mean, one of the concepts you often see here, and you see the Chief Justice mention it, we've seen other justices too, is this idea of liquidation when it comes to post ratification, history relying on Madison and Federalist 37, and of course, Will Boad's famous argument on liquidation. Love your thoughts as an originalist, how to think about post ratification history, and then more broadly turning to slaughter, you know, it's a major point of contention between the Chief and Justice Sotomayor, and a lot of Justice Sotomayor's opinion is sort of a rich telling of the post ratification history here. - So let me just say, I strongly agree with what Mike said methodologically, and I can elaborate on that. Let me also say that liquidation is not originalist. I think at some point, Will Boad needs to clarify, I mean, Will Boad has been a little unclear and vague, he's endorsed slaughter, but he's been, and he keeps invoking liquidation, both after oral argument and after this, and I've asked Will Boad directly, can you please tell me what you mean, both by the liquidation, and when and where you thought it was liquidated, and I'm not sure, and by the way, there's an excellent article by Jack Raykov who says that Will Boad misread Madison. I think we need to all acknowledge that liquidation is not originalism. Will Boad wrote an article called is originalism our law? I think the addendum to this is cherry picking our law. And let me first, as long as you're asking this question about liquidation, liquidation is ironically a lot of very slippery. Well, this is not what Madison meant, but in practice, what liquidation lines up being is a very watery, slippery ocean of documents, and just like Scalia criticized the non-originalists for going to a party and finding their friends, liquidation is an ocean of documents where if you're a unitary executive theorist or pro-abortion rights or pro or anti-affirmative action, you can swim in a liquid of ocean of documents and find your friends. And so I think Mike and I might be on the, and I really think that it's actually Will Boad has a duty to explain both what he means and to respond to this historical critique and to specify why he thinks, why he's persuaded by his opinions. But I really wanna go back to, I identify as a lexical originalist and it's just another way of putting what Mike put, that you start with the text and context together. And then if text and context are unclear, then you go to other sources. And that's where the better work on this is not Will Boads. It's Lauren Solombs. Lauren Solombs is very clear about the distinction between interpretation of a text and its construction. And what Will Boad has done is unhelpfully liquidated and gray-arriified and made a mess out of the distinction between interpretation and construction. And I think Mike just gave a very good example of how that has happened. And the slaughter opinion is an example of an extremely sloppy version of liquidation, which I can detail, I can also follow up. But one example of this is presidential practice. I've now gone into some detail about what Chief Justice Roberts thinks he found of presidential practice. And it's remarkable how he can't actually cite any documents from when the presidents were in practice. He cites Jefferson from 1780. Tom, check my math on this, was Thomas Jefferson president in 1780? Had the appointments blocked by 1780. In fact, you can go to my sub-stack and you can see how Chief Justice Roberts plucked a sentence out of a document that proves the opposite and it frankly contradicts Mike. Because Thomas, if you're gonna cite Thomas Jefferson like Chief Justice Roberts did, it tells you that the background of these issues were much more complicated about the removal power and he winds up endorsing the model of offices in which some offices with a term of years were not removable. I really need to emphasize this. When Mike says the text is clear, I have not heard and Mike, I have tremendous respect for your work in this area. I have not heard an argument in this podcast. I have not heard a textual or more importantly historical evidence for why the executive power implies an unconditional, indefisible removal power. We can agree to disagree about whether there's an implicit removal power but I have not heard an argument. And for every text you can cite Mike and frankly, it's the executive power shall be vested in president. There's also a legislative vesting clause. Of all legislative power here in granted, she'll be vested in Congress and the necessary and proper clause just to reread it is, Congress shall have power to make all laws which shall be necessary and proper for caring into execution for foregoing powers. And all other powers vested by this constitution and the government of the United States or in any department or officer thereof. This is a stalemate between vesting clauses, why? Because the legislative power in England created it was the power to protect offices so that people might take them and might you've read my article Vanality in the Notre Dame Law Review. And at some point you said it was pretty persuasive and there's a whole explanation for why this was a legislative power. So if you invoke the executive power clause, I match you, I can at least counter that equally with the legislative vesting clause. Then I've just given you the faith that take care clause where there is in the text of the constitution, a condition set on executive power, it was that you had to have faithful execution and a corollary to good faith is good cause. And I'll up the ante here with the text. Why is there an opinions clause in the text? If the president had to be given a power to merely ask for an opinion, why would there be implicit removal? Because obviously if the text implied that the president could remove someone, then you wouldn't have to say that there was an opinions clause, that there was a possible, that the president could ask, merely ask, for an opinion. And so the upshot here is, as a lexical originalist, I acknowledge that this issue is not clear in the Constitution. So I go to more history. And frankly, there's a precedent. And the only way that I think precedents are valid is if they aren't contradicted by the text and context. And so speaking of burdens of proof, the burden in this case was on the originalist to come up with hard historical evidence to overturn Humphrey's executor a unanimous eight-zero opinion from 90 years ago upon which much of our government has been premised. And I have not-- and Grant Mike, I'm going to give you some tough love here. I have not heard a single contextual historical argument that supports an indefeasible, unconditional removal power by the president. And we're coming, sadly, to the end of our time here in this discussion. I want to leave some a little bit of time at the end just to bring in a book and the carve out that the Roberts Court provides there for the Federal Reserve. But before doing that, Mike definitely want to let you hop in either taking up the call here of Jed on the unconditional removal power one final time, or anything that you'd like to say about anything more about either some of Jed's critiques of liquidation as a concept and/or what you learn or fail to learn by looking at the post ratification history here in this case. Sure. First of all, say I largely agree with Jed's view of liquidation. I think liquidation is more properly understood as a form of non-judicial precedent, following a practice that is contrary to the original understanding, well, there might be reasons that we'd stick with it. I think that carries over to the cook base pretty easily. And also some of the things that Jed has said about Umber's exact year, whether it should have been overturned. So I think I'm going to agree with there. I think the fundamental difference between me and Jed is just whether we see the tax is being on its face pretty clear. And I would add, I also don't disagree with Jed's view of the Faithless Cution Clause except to say that I think that the limit that places down the present is very narrow. I do think the present cannot remove someone because he took a bribe to do so, for example. And so I do think there is a limit coming out of that, but it isn't a limit that implies anything like a good cause stand. And that's not the way we understand the present's authority to remove other executive officers. And again, I think that the problem for Jed's side is that there's no account of what it means to say that the executive power is vested in the present that allows Congress to vest executive power in someone else. And we can talk about these agencies, but this argument extends to cabinet officers as well. If the Congress imposed a good cause removal power, or even a no removal power, had to be endorsed by the Senate, the way Hamilton at one point thought, would we say that you could have a good cause or senatorial veto on presidential removal of the Secretary of State, of the Attorney General? And would that leave the president with these? Executive power? Surely, it would not mean that the executive the president would have the full control of the executive power in that situation. There's just no, there's not a contending argument for what a vesting of the executive power could mean. So that just fundamentally, that's just our difference of opinion. I think methodologically, we're not that far apart. We just read the text in different ways. And then that carries over into the way to be look at the history in terms of who has the burden of proof. And so I just, I'm signing it up. But I think I've been pretty clear in this conversation that I'm not, even though there were many members of the first generation of the first Congress who made that senatorial argument, that's not the argument that I'm defending here. I just have to understand why. It's a little bit of an understanding that I'm making that argument. Well, I understand why you're not making that argument. Why, why is it that Congress could not do that? Why could that? The best Congress. That's the word secretary Lawson and I. That's the argument I made here about the necessary and proper clause. And that's the argument. Well, in fact, there are two different arguments and they both, a lot of people at the time, as you yourself said, thought that the Senate should have that power. So the article I wrote was called the indecisions of 1789 because I identified a four different positions and there was no consensus. But I guess if the text is ambiguous, I don't see why the Congress couldn't make that. And I think that's, to me, that just really comes down to this and not having. And I understand that you've made the arguments yet, but it just, it doesn't, to me, provide an explanation for what article two section one means. It doesn't provide an alternative to the, to the Scalia Roberts, unitary executive view. Well, we should go on and talk about Cook because I think there's some things to be said about that. Absolutely. So I think we'll have to agree to disagree on water and the removal power. But hopefully this discussion was illuminating for the audience to hear two originalists, talk about a really big constitutional question, disagree on certain key points. We'll also finding some important areas of methodological agreement along the way. But love to bring in Trump v. Cook. If slaughter is giving us ultimately in a six to three Roberts court opinion here, a really broad reading of the president's removal power rooted in the idea of a unitary executive needing control over the executive branch and as a result of that, Congress, not being able to step in and provide tenure protections for various members of the executive branch. The court then steps in here in Cook and says, the Fed is different. The Federal Reserve is different in that Congress in that context has power to provide for cause protection for Fed governors. In part, Chief Justice Roberts' opinion here rooted in an argument from in a lot of ways post-Ranification history rooted in the first and second banks of the United States that connects with a little bit of our previous discussion. But maybe Jed, I'll allow you each to take a beat on Cook and this carve out that the Roberts courts providing. But maybe start with you, Jed, to sort of talk about the degree to which you find the courts move here again in opinion by Chief Justice Roberts, that move of creating that carve out based on post-Ranification history, whether it's persuasive or not. And anything you want to pull out of the critiques we see, especially in Justice Thomas' lengthy dissent in the case where he addresses areas of weakness he sees in the courts move there. - Great, thanks Tom. And let me start off by saying, let me give credit or at least partial credit where credit is due. Justice Thomas is correct in Cook and let me say why. I think this may now be a scholarly overwhelming consensus here that Chief Justice Roberts' opinion is a historical. And when I said before, is originalism our law? No, is cherry picking our law. This was one of the most egregious forms of cherry picking that I can identify, some in slaughter, but this was really remarkable. Here's the argument, okay? If you read everything in slaughter, except for two paragraphs, it has this absolutist approach to, and frankly, I'm curious what Mike would also say because if you take Mike's approach to the executive power clause, it has to apply to the Fed. Why? Because the Federal Reserve Board exercises public, federal executive power. And it does so as rulemaking. It has adjudicating power. And it can represent the United States and its power and its enforcement. It is part of the executive power. So if I take Chief Justice Roberts' views in slaughter, or if I take what Mike just argued on this podcast, the Federal Reserve cannot have removal protections of any kind. Good cause and efficiency and neglect of duty, it's the same argument. How does Chief Justice Roberts square a very, very big circle by making stuff up, by taking one historian out of context. Eric Lomasov wrote a book about the Fed. The thesis of the book is that the, okay, so wait, let me take a step back. Robert cites the first and second banks of the United States as examples of, in Wilcox, quasi-private power. Now that was a tell, apparently if there are no ifs, ands, or quazies anymore. There, which is what he says in Humphries, about, it says about Humphries, about quasi-judicial and quasi-legislative. It's an irony that he invoked quasi-private. There's no such, so the first and second banks, one of which was Hamilton's creation, in 1790, that's the first bank of the United States. It was private. This happens all the time and it happened more in the past. Legislatures could create corporate monopolies and those were private bridges, private roads. They were created by the state with certain legal powers and legal duties, but they exercised private power. And neither the first Congress nor the second Congress delegated to either bank any executive power. The thesis of Eric Loma's office book is the amazing role, the amazing way that the private officers of that bank took their private monopoly power and irrigated to themselves more, quote, power to regulate. But it was like private regulation in the way that your bank privately regulates you by looking for your credit score, okay? It is gobsmacking that in response to Justice Thomas's dead-on critique that Chief Justice Roberts cherry-picked outrageously, a sentence from a book without reading the pages around it or without understanding the book's thesis. And the only opinion in that case that actually says what they're doing is Havanaugh's concurrence, which is basically like, we can't destabilize things. Basically, I like the Fed's independence. We like the Fed's independence. It's too destabilizing for what we like. And what we, you know, we don't like the FDC. We do like the Fed. And I don't know, how do we decide these cases in the future? We have to just guess what kinds of agencies, Roberts, and Kavanaugh like or don't like. And Mike, to bring you here in the final beat on cook, what do you make of the carve out here in Cook that the Chief Justice and the court make? You know, are there any other, if you agree with some of Jed's critiques of the underlying history? Are there other ways for an originalist to uphold tenure protections for the Fed reserve, but not for an agency like the FDC? Sure. Well, I largely agree with what Jed said, although I'm perhaps not as emphatic about it. I do think there's impossible original arguments with respect, at least to the Fed's core function of controlling monetary policy. I think one, I'm not a Fed expert, but my understanding is the Fed does engage in the number regulatory enterprises, which really does seem to come within the exactly power. But when we think of the Fed, what we really think of them doing is managing interest rates. And so an original argument might be, and this goes to Madison's point about the comptroller, is that managing a monetary policy in that way is not really executive power. And remember that the executive from movable power, which I don't think is a separate power, just something that follows from having all of the executive power, only applies, and Robert says this in slaughter, it only applies to the respect to people who exercise executive power. So you have to ask, is the Fed exercising executive power? And I think as to some of its regulatory functions undoubtedly it is. As to its monetary functions, I think that's a harder question. And I would have liked to see a little bit more explanation on that from from just Robert's, rather than merely relying on the bank of the United States, which I agree is not really a perfect analogy at all. Here's just real quickly, though, what I would have rather see Robert say, because I think this is really what he meant or what he, what he thought, is that originalism is necessarily qualified by precedent. Nobody thinks that we throw out every non-originalist opinion that's ever been decided by the court, which is a lot of. Once that are thoroughly embedded in the legal system on which our society fundamentally relies, are not going to be changed because it's just too stabilizing. And originalism can accept that as a qualification. I think by extension, originalism also ought to accept that longstanding practices can establish a non-judicial precedent that has to be respected. When again, it's so embedded into our legal culture and our political culture that are we fundamentally destabilizing to remove it. You can call this liquidation if you want to, but I'd just rather call it non-judicial precedent, because I think that's a better argument. And then just real quickly, what I would say in defense of the results in cook and slaughter, is that the Federal Reserve is simply essential to the functioning of our modern monetary system, the independence of the Federal Reserve, and to remove the independence of the Federal Reserve, we'd cause a collapse of the financial system, or at least there's a real risk of it. And that is based on a longstanding practice that we're just not going to disturb even though Justice Thomas is probably right about the original meaning here. In contrast, the other agencies are simply not, if their independence is not so embedded to take the FTC, this is the independence of the FTC, really, matter, well, the FTC enforces some economic regulatory matters, but so is the Justice Department, which is not independent. It isn't embedded in the legal and financial and economic system the way the Federal Reserve is. So it's a high bar to maintain a practice or a precedent in the face of the originalist evidence of the contrary. But I think the Federal Reserve meets it, and the FTC doesn't. And it's not a question of whether Roberts or Kavanaugh over and likes it. It's a question of how deeply embedded is it in our legal and political system? And to me, the answer is that the Federal Reserve is the FTC's not, and I wish they'd just said that in a cook, because I think that's what was driving you thinking. And for any listeners that are interested in this idea of nonjudicial precedent, it immediately brings to mind Michael McConnell's wonderful article, Time, Institutions and Interpretation, which is actually quoted in Justice Sotomayor's dissent in slaughter. And so just a little homework, if you're interested in nonjudicial precedent. Have time, maybe, just for a final word from Ujet in this wonderful and illuminating discussion. Well, I love where we ended, because I've learned so much from reading Mike's work and talking to Mike. And in some ways, we really ended in maybe the same place of what we, and it's not like either one of us is going to get nominated or confirmed to any time ever. For some of the reasons that we're pretty, we have some idiosyncratic views. But where he just ended is really where I would have ended, which is the FTC of 1913, or 1935 when Humphreys was written, is not the same FTC today. There was a narrow opinion to have been written that says basically what Mike just said, that the FTC was once upon a time an independent regulatory commission that had sort of limited quasi-judicial roles. And the FTC took on, to itself, a little bit like how the first and second banks did, took on more and more power so that it became more and more executive. And so I think there was a perfectly valid argument that I might have supported from originalist grounds, or from grounds of just applying myers, that the FTC that was upheld in Humphreys had irrigated to itself too much core executive power, and the FTC today could no longer be independent. And I would make that argument from originalist grounds. And the other point that Mike said, which I want to underscore, is the point is the original public meaning of judicial power. In the 18th century, judges had nothing remotely like what judges left right and middle have irrigated to themselves. And so another way to put Mike's point that I embrace 100% is that judges need to exercise a little bit of judicial humility and interpretive humility. And in these cases, I think one could have ruled against the FTC's independence, but have done so incrementally, modestly, enacting with more of the original public meaning of article three judicial power and limiting the case to the case and controversy at hand. And so I'm really quite pleased that even though Mike and I had a lot of disagreements about text and context, I think we actually see the world fairly similarly about the appropriate role of judges in our society. And about the importance of getting text and context right with evidence. Chad and Mike, for a difficult, energetic discussion about originalism and the presidential removal power, hope we can do it again soon, frankly, on some other topic, but thank you so much. Thanks again. Thanks, Mike. I really appreciate the evolution of this conversation and your engagement. Thank you. And Tom, thanks for having me. Thanks again. Yeah, thanks to you, Jen. I'm a little worried. We ended up a little too much in agreement. I'm going to have to review this a little bit and think about where we went wrong. But yeah, thank you both. I really appreciate it. Thanks so much, Tom. This episode was produced and mixed by Bill Pollock with production support from Thrall Sum. [BLANK_AUDIO] provided by Anna Salvatore and Tristan Worshem. Please recommend we the people to friends, colleagues, or anyone anywhere who's eager for a weekly dose of constitutional education and debate. In celebration of America's 250th anniversary, we published The Promise of America, Reflections on Our Enduring Ideals. The book is an inspirational collection of essays exploring the founding principles that continue to shape American democracy from the nation's leading constitutional scholars. If you would like to purchase a copy of The Promise of America, visit constitutioncenter.org/promiseofAmerica. And as always, remember that the National Constitution Center is a private, nonpartisan, non-profit. And we rely on your generosity, passion, and engagement for all of our programming, including this podcast. Please consider donating today at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Tom Donnelly.