In an important 2020 article entitled The Executive Power Clause, Professor Julian Mortenson advanced an historical account. At the founding, he argued, the executive power conveyed to the president in Article II was “unanimously” and “demonstrably” understood to mean just one thing: the power to execute laws that were separately provided for. As the paper’s abstract put it, the executive power “extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some prior exercise of legislative authority.”
That conclusion has special relevance today, as the Supreme Court recently scheduled argument on whether to strengthen the president’s removal authority. On its face, Mortenson’s paper is a sharp arrow in the quiver of those who would resist the Court’s expanding removal jurisprudence. Indeed, the paper can be viewed as an originalist challenge to the very idea that the president wields a constitutional removal authority. Confirming as much, Professor Caleb Nelson, an eminent originalist, recently invoked and linked to a companion paper by Mortenson as part of a larger argument against the Court’s expanding removal jurisprudence.
I agree with Mortenson that it is important to get Article II’s history right, and that doing so requires going far beyond the familiar sources of law office history. Moreover, much of what I have learned about the early history of executive power comes from his research. At least in my view, however, the practical upshot of Mortenson’s historical argument is unclear. And seeing why may point the way toward a more nuanced or pragmatic resolution of removal questions.
While largely focused on separating the executive power from royal prerogative powers regarding, for example, foreign affairs, Mortenson’s piece also engaged with some additional topics, such as the executive power to appoint officials. As Mortenson relates, at least some founding-era figures believed the executive power conveyed a power to appoint. But if the executive power were purely executory—that is, if it truly extended “only to the implementation of pre-existing legal norms and directives,” to borrow from Mortenson’s abstract—then it would support a power to appoint only when a separate law so provided. Mortenson addressed this important complication over several pages.
Most of the paper’s discussion of appointment describes historical figures who viewed the power to appoint as “logically entailed” or “functionally implied” by the power to execute the law. In practice, how can the one operate effectively without the other? But if one executive power can be conveyed by logical entailment or practical implication, then maybe many others can be as well. Examples could include powers to defend the nation from attack, to interpret the law, and to spend money, all to the degree needed to execute the law.
The most salient candidate is the removal power. Following Mortenson’s logic regarding appointment, one might ask the following question: In practice, how can law-execution operate effectively without the ability to remove subordinate appointees? That rhetorical question effectively underwrites the Court’s recent removal case law.
Mortenson’s treatment of the appointment power is especially conducive to this line of thought because some founding-era figures believed that appointment and removal powers could be linked. For instance, Hamilton in Federalist No. 66 referred to “a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them.”
So, instead of arguing against presidential removal powers, Mortenson might be offering a theoretical roadmap for defending them. However, Mortenson’s paper does not address this possibility or significantly comment on removal.
Near the end of the paper’s discussion of appointments, Mortenson adduces “a great many founders” who “did take a more functional view of Law Execution.” These figures, he continues, cast the power to appoint as just one of the executive’s multiple “disaggregated” powers. Mortenson lists them as follows: “(i) the power to impose prohibitions on private parties and (ii) the power to carry out the legislature’s affirmative projects, but also at least presumptively (iii) the appointment of different kinds of subordinates to do each kind of execution.” Mortenson also discusses historical figures who spoke of “executive powers,” which (as he notes) is a “plural” concept. This passage, too, raises the possibility that “the” executive power set out in Article II actually amounts to a bundle of distinct “executive powers.”
Mortenson’s analysis might even reenact the process that originally generated multiple-powers theories: start with a purely executory conception of the executive power, and then grow outward from there, based on a logic of practical entailments regarding what is (to use Mortenson’s phrase) “functionally implied.” If so, Mortenson’s account would offer a helpful point of comparison with some other theories, such as ones linked to royal prerogative (which, again, represented his main argumentative target). But his account could still support varied executive powers, including as to removal.
Mortenson himself has suggested as much. In 2021, for instance, he called the removal power “a close call” and further noted in part: “I’m open to the argument at least as a formalist matter, and without looking at subsequent history, that removal is also included in the executive power.” Mortenson then referred to “logical entailment” and what is “functionally necessary,” while emphasizing that those approaches differed from royal prerogative. (See minutes 27 & 31–33 here).
To my mind, Mortenson’s historical research suggests that the removal issue—which has occasioned debate ever since the nation’s founding—may simply be indeterminate as a matter of original history. Nelson’s recent essay (noted above) ends on a similar note, emphasizing that the history is relatively “equivocal” and raises “ambiguities.” This sort of uncertainty is familiar. Despite the lawyerly desire for a useful history, the past does not always answer current questions. Sophisticated legal thinkers, originalist and non-originalist alike, recognize this possibility. Sometimes, there is just no definitive answer out there to be found.
For Nelson and many others, the existence of historical indeterminacy leads naturally to consideration of pragmatic factors, such as the “consequences of the interpretations” on offer, including for the present day. Many other approaches are available. Some interpreters may be inclined to defer to legislation, for instance, whereas others will look to tradition, longstanding practice, or case law. Under any of these approaches, history alone would not defeat removal doctrine.
Because ambiguous history invites a wider array of considerations, it can also create common ground and nuance—especially as to hotly contested issues. History allows that removal questions are not all the same and that the issue admits of degrees. While the Court’s case law has long accepted that basic point, some participants in current removal debates, both on and off the Court, may not. It would be unfortunate if the Court embraced an absolute removal power based on a mistaken belief that the only historically available alternative is no removal power at all.
As you can see, my analysis here is both tentative and narrow. Mortenson’s historical account is not the only one available. And viewing the history as ambiguous—even if correct—would not come close to resolving whether there is a presidential removal power today, much less how the Court should resolve any particular case.
Even so, I hope my effort to surface potential ambiguities may (somewhat ironically) foster greater clarity in the ongoing debates regarding executive power.