Day: October 15, 2025

Caleb Nelson has recently weighed in with a long and thoughtful blog post on the so-called unitary executive debates and whether the president of the United States has a constitutional right to remove principal executive officers. Nelson is a famous and prominent originalist who is usually right about everything. His foray into this debate has caused something of a stir.

With all due respect to Nelson—and I mean it, since he’s absolutely right about the public rights doctrine, about sovereign immunity, and about much more besides—he has not quite considered all the arguments for the proposition that the president has a constitutional right to remove. His intervention, though, is critically important because he discounts, probably correctly, many of the older, standard theories of executive power and removal. He relies on works from Julian Mortenson and Jed Shugerman, among others. I have learned much from Professors Mortenson and Shugerman, too—and as I shall explain presently, I agree with Mortenson about the meaning of executive power and with Shugerman about the uncertainty regarding the so-called “Decision of 1789.” I do not, however, think that either of them has shown as a consequence that the president does not have a constitutional right to remove principal executive officers.

Much of the following will summarize the argument of my own longer article in the Journal of Legal Analysis, entitled “The Original Presidency: A Conception of Administrative Control.” As an initial matter, though, it is important to establish what that article doesn’t argue, and where I agree with Nelson.

The conventional view of executive power among formalists is that the Vesting Clause grants a “residuum” of executive powers, including, for example, foreign affairs-related powers traditionally exercised by the British monarch. If removal is executive in nature, and the Constitution does not assign that power elsewhere or otherwise limit the president’s exercise of it, then it vests in the president by virtue of the residuum.

As I have written elsewhere, I agree with Nelson and Mortenson that this account of the Vesting Clause is likely incorrect. My view is that “the executive power” is a substantive grant of power, but of only one: the power to oversee the execution of the laws. But that power, I argue, includes removal—not because removal was a freestanding executive prerogative, but rather because it was part and parcel of the power to oversee the execution of the laws. (More on all this presently.)

I also agree with Nelson that nothing about Article II supports the strong version of the so-called unitary executive thesis that the president must “be in charge of all exercises of executive power by the federal government.” But, as I argue in my Journal of Legal Analysis paper, one can believe—and many did at the time—that the president has no constitutional right to interfere with the duties of subordinate officers in whom Congress has vested discretion (unless Congress has said otherwise), but also believe the president always has the right to remove, for any reason, if he thinks those officers have not exercised their discretion well. This view would also make sense of the Opinions Clause, which Nelson, along with many others, suggests is otherwise superfluous. That clause would be necessary to impose a constitutional obligation on the principal officers to obey the president in this one respect—to provide written opinions about their duties—so that the president may receive information so that he may intelligently exercise the power to remove.

Whatever the Vesting Clause might otherwise grant the president—that is, regardless of whether the president can direct officers or has some other residuum of power—the executive power is, at a minimum, the power to oversee the execution of the laws by others. Because the king, a governor, or the president could not possibly execute the laws alone, the executive power was understood to include the power to appoint officers to assist. One need not accept the royal-prerogative-residuum-vesting thesis to accept this proposition. Here is Mortenson himself: “The executive power was often viewed as either logically entailing or functionally implying the appointment of ‘assistances.’”

The evidence for this proposition is legion. For example, George Mason thought that the Senate should have no role in “the appointment” of “public officers” because it was an executive power. James Wilson thought similarly: “There can be no good Executive without a responsible appointment of officers to execute.” In the Constitutional Convention, Madison argued that the “extent of the Executive authority” was the “power to carry into effect[] the national laws” and “to appoint to offices in cases not otherwise provided for.”

The Antifederalist writer Hampden wrote that “the most important and most influential portion of the executive power” was “the appointment of all officers.” Brutus, Centinel, and Richard Henry Lee, among others, agreed. As did Publius: “the appointment to offices … is in its nature an executive function.”

The more controversial question is the connection between appointment and removal. Giles Jacob’s law dictionary—the most prominent in America at the Founding—stated plainly that the king “names, creates, makes and removes the great officers of the government.” As Shugerman has written, however, it is “rare to find much discussion of removal power on the Founders’ bookshelf.” But there is an explanation for such silence: the power to remove was incident to the power to appoint. Thus, the appointment power included removal by default because an officer could be removed by the very act of appointing someone new.

Shugerman himself has canvassed numerous authorities for this proposition. This tradition was “enshrined in Latin” maxims, “unumquoque dissolvitur, eodem modo, quo ligatur” and “cujus est instituere ejus abrogate,” translating to “every obligation is dissolved by the same method with which it is created” and “whose right it is to institute, his right it is to abrogate.”

In 1780, Thomas Jefferson wrote in a private note: “The power of appointing and removing executive officers inherent in Executive. Executive inadequate to every thing. Appoint deputies. … He who appoints may remove.” On this point, Alexander Hamilton agreed. When he appointed Tench Coxe as the assistant secretary of the Treasury pursuant to the act establishing the Treasury Department, he noted in the commission that he could remove Coxe even though the statute was silent.

The Supreme Court subsequently adopted this proposition. At least “in the absence of all constitutional provision, or statutory regulation,” the Court held early on, “it would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment.” As did other prominent antebellum Americans. Chancellor Kent wrote in a letter to Daniel Webster that “the power to appoint and reappoint, when all else is silent, is the power to remove.” And Daniel Webster wrote in another letter, the power to remove is “incident to the power of appointment.”

As the Kent and Webster letters suggest, however, the real question is whether the Constitution derogates from the default rule. It does with respect to appointments, at least, because of the Appointments Clause. But what of removal? The reason the Constitutional Convention did not talk about removal was because the initial drafts to come out of the Committee of Detail assigned the appointment power over ambassadors and Supreme Court judges entirely to the Senate, and the appointment of other officers to the president alone. There was no need to think about removal at all; the Senate, acting alone, would remove ambassadors, and the president, acting alone, would remove other officers. The appointment power was not shared between the president and the Senate until the Committee of Postponed Matters in the final days of the Convention on September 4. The Framers had no time to think about the implications that sharing the appointment power would have for removal.

Thus, in the famous debates over the removal power in 1789, when Congress established the first executive departments, representatives could draw different conclusions from this maxim. Several representatives believed that, because of this maxim, the president and Senate together had the power to remove, as both together had the power to appoint.

Even James Madison agreed that in general “the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment.” He argued that if all the Constitution said on this score was that the president and Senate shall appoint, then he would agree that the president and Senate together must remove. Because the Constitution included both the Executive Vesting Clause and the Take Care Clause, however, he thought otherwise. The power to remove may follow from the power to appoint, but the power to appoint is—as noted previously—ultimately an incident of executive power. “If any thing in its nature is executive,” Madison stated, “it must be that power which is employed in superintending and seeing that the laws are faithfully executed.”

Thus, Madison argued, both appointment and removal were ultimately incidents of the executive power. The Constitution then derogates from that principle with respect to appointments, but not for removals. The “association of the Senate with the President in exercising” the appointment function, Madison argued, “is an exception to this general rule” that the executive power is vested in the president, which exception does not apply to removal.

The Take Care Clause further supports this proposition, Madison argued, because it implied that the president has the power “necessary to accomplish” the duty of faithful execution. That is, giving the Senate a check on removal effectively transfers the take care duty from the president to the Senate. Importantly, Caleb Nelson agrees with all of this. He writes in his post that he agrees that a senatorial check would be equivalent to an impermissible legislative veto. But that gives away the whole game because that is a recognition that the removal power is in fact the president’s.

The question then becomes whether Congress can, pursuant to its Necessary and Proper Clause, limit the reasons why the president can remove a principal officer. Nelson doesn’t see why it couldn’t, if it can establish the offices. But just because Congress can establish, say, federal crimes, it does not give Congress a “lesser” power to limit the reasons why the president can pardon individuals convicted of those crimes. It is true that Congress establishes offices, and doing so furthers the president’s ability to oversee faithful execution. Even tenure rules, qualifications for office, bipartisanship requirements, and the like can help the president carry law into execution. But Congress can no more restrict the president’s power to remove—once it is acknowledged he has that power—than it can restrict his power to pardon.

To repeat, it doesn’t follow that the president must have a constitutional right to control the exercise of an officer’s discretion, although many executive power theorists do seem to think so. As I’ve written, however, Presidents Washington, Jefferson, and even Taft—who subsequently authored the Myers v. United States opinion—thought Congress could insulate the individual decisions of an officer. But, Taft wrote, the president “may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised.”

Nelson’s intervention in this field is welcome, but it seems to me he hasn’t sufficiently shown why Taft was wrong about the bottom line.

The first Liberty Fund colloquium that I attended occurred in 1986. Held in Montana, the reading for the event was a single book, Playing God in Yellowstone: The Destruction of America’s First National Park, by philosopher Alston Chase.

His argument was that the National Park Service (NPS), in cahoots with the budding environmentalist movement, had already wrecked America’s Yellowstone treasure. The guiding principle here had come from the 1963 Leopold Report, which urged the NPS to manage the parks so that they would be “nearly as possible in the condition that prevailed when the area was first visited by the white man. A national park should represent a vignette of primitive America.”

When placed atop the earlier priority given to supplying a good visitor’s experience, the results were disastrous. For example, Yellowstone now has far fewer beavers due to depleted vegetation. This was a consequence of too many elk. Their numbers had exploded because the NPS had killed off the wolves, mountain lions, and a hefty share of the coyotes that had kept the elk population down. Bear feed lots and bison fenced in along the roads—popular in the 1950s—were shut down. Starving bears began to attack the human visitors, and so on.

Alston showed how the environmentalists’ faith in the invisible hand of nature actually rested on two massive errors. First, Yellowstone was not a closed ecosystem, but rather part of a vastly larger physical and biological landscape. This made it impossible to manage flora and fauna only within the strict boundaries of this, or any, park. And second, human alterations of plant and animal life within the future park had actually been happening for over ten thousand years, ever since the first human visitors had arrived after crossing the land bridge from Asia. The “pre-white man” measure of “primitive America” or wilderness had no real historical or measurable coherence.

Also present at that 1986 Liberty Fund colloquium were several persons from the relatively new Political Economy Research Center. They were advancing a fresh and compelling paradigm for the conservation of valued ecosystems based on honest science, property rights, market incentives, and common sense. Since then, I have been on the mailing list for PERC Reports. By a modest coincidence, the Summer 2025 issue features articles on “Building a Brighter Future for National Parks,” including Kat Dwyer’s “Surviving the Popularity of Yellowstone.” Her PERCish proposal for reducing the Park’s $1.5 billion “deferred maintenance hole”? Slap a $100 surcharge on international visitors.

The PERC model came to mind when reading Steve F. Hayward’s “A New Environmentalism?” There is much in this essay that I admire. His review of the early enthusiasm for a radical environmentalism shown by conservative voices such as Ronald Reagan and National Review, and the hostility toward the first Earth Day exhibited by the progressive left, is both hilarious and sobering. His argument that the anti-human bias of modern Malthusians, such as Paul Ehrlich, later led the left to embrace Ecology is convincing. This ideology found environmental worries to be a useful tool for expanding the regulatory state. Hayward correctly skewers the “peak oil” hypothesis advanced several decades back for vastly underestimating oil and natural gas reserves. He properly laments the demise of common law remedies to environmental pollution, such as nuisance statutes and riparian rights. His suggestions for repairing this damage, such as bringing back old-fashioned common law liability, are especially strong. Hayward correctly indicts the Endangered Species Act for encouraging private owners of wildlife habitat to “shoot, shovel, and shut up” whenever a rare creature enters their property. And his call for privately funded monetary prizes for specified innovations in environmental and energy policy is a most welcome idea.

All the same, I offer two cautions regarding his analysis.

First, while I share his enthusiasm for potential ecological gains from a strengthening of property rights, the models that he offers may favor the concentration of land and resources in ever fewer hands. For example, while he commendably argues that “the commons should be privatized to the fullest extent possible,” he also praises the “Ecomodernists” who endorse “large-scale agriculture” and “resource extraction” on a mega-capital scale. The human model here seems to be billionaires, each owning several million acres of Montana or Wyoming land, and corporations employing technologically advanced machines in place of human labor. I much prefer strategies and incentives that would enhance land and resource ownership by “smallholders” of “the middling sort.” Given the opportunity and the proper incentives, they too can be good stewards of the environment. This was the republican model favored by the nation’s Founders, and one still relevant to our time.

Second, Hayward frequently denounces “the climate change fanatics”—or alternately “the climate hysterics”—and their “monomaniacal climate fixation.” He never identifies who these people are, however, nor why their arguments are wrong and hysterical. Recent research in and on science may help clarify matters here.

To begin with, most commentaries on human-driven climate change—or the “global anthropogenic transformation of terrestrial nature”—focus solely on the industrial era, beginning in the early nineteenth century. However, as the title of a recent article in The Proceedings of the National Academy of Sciences (and foreshadowed by Alston Chase) puts it, “People Have Shaped Most of Terrestrial Nature for at least 12,000 Years.” Major events included the deforestation of Western Europe beginning in Roman times and the introduction of rice cultivation in China 5,000 years ago. The essay provides a multitude of other examples, mostly performed by the oft-sainted indigenous or traditional peoples. As the authors of the paper conclude: “Depicting human use of nature largely as a recent and negative disturbance of an otherwise human-free natural world is not only incorrect but has profound [and disturbing] implications for both science and policy.”

Put another way, human-induced climate change has a long and diverse pedigree. What about global warming caused by the burning of fossil fuels? Where can someone find honest and unbiased science on this? The answer may be surprising: turn to the oil industry itself.

A 2018 article in Nature Climate Change describes early research funded or encouraged by the American Petroleum Institute (API). For example, a 1954 project reported an increase in global CO₂ concentration of 10 percent since 1854. Four percent of this was due to the combustion of fossil fuels, with the remainder due to deforestation and other land use changes. In 1965, API President Frank Ikard reported to his membership “that carbon dioxide is being added to the earth’s atmosphere by the burning of coal, oil, and natural gas at such a rate that by the year 2000 the heat balance will be so modified as possibly to cause marked changes in climate beyond local or even national effects.”

More remarkably, a 2023 article in the journal Science examined 32 in-house documents written by Exxon (later ExxonMobil) scientists between 1977 and 2000 and another 72 peer-reviewed scientific publications also authored or co-authored by the oil company’s employees between 1982 and 2014. The result? “We find that most of their projections accurately forecast warming that is consistent with subsequent observations.” Moreover, ExxonMobil scientists “correctly rejected the prospect of a coming ice age, accurately predicted when human-caused global warming would first be detected, and reasonably estimated the ‘carbon budget’ for holding warming below 2 [degrees Celsius].”

It is true that ExxonMobil’s public relations strategy, as laid out in a 1988 internal memo, was to “emphasize the uncertainty in scientific conclusions regarding the potential enhanced greenhouse effects.” Of course, this is exactly what one would expect from a corporation that derived its income and profits from the drilling, refining, and sale of fossil fuels. The surprise is that the scientists whom the company hired, paid, and trusted concluded otherwise. Their science is far from hysterical and may perhaps be as close as we can ever get to fair and accurate analysis.

In short, the activities of human beings can change the climate and have done so for thousands of years. Humans in the past, however, were always unaware of (and probably quite unconcerned about) the possible climate-altering consequences of their actions. A new reality emerged in the late twentieth century when, for the first time, scientists arguably identified a specific cause of human-induced climate change before it had reached its consummation. And, for the first time again, humans therefore gained the collective opportunity to alter or mitigate the process.

With that said, specific strategies of mitigation—e.g., ban the burning of coal, favor electric vehicles, reboot the nuclear power plants, tax the CO₂ discharges of factories—may or may not be worth the economic, social, and/or political costs. The option of doing nothing also remains, so letting the consequences fall where they might (while perhaps investing in prime beachfront property on Greenland’s sunny coast). In every case, though, choices must be made, even if by default. To borrow a phrase, that is The Big New Thing.

Some ninety years ago, Rose Wilder Lane penned “Give Me Liberty,” extolling the remarkable freedoms Americans had, especially in contrast to their European counterparts. Written in the 1930s, Lane’s piece is both a stirring defense of American freedoms and a damning portrait of European societies still writhing under the weight of bureaucratic statism. Written just as the state interventions of Roosevelt’s New Deal began to bite, her notes stand as a useful portal into a different era—challenging and checking our current assumptions about the trajectory of transatlantic liberty. In a nutshell, Europe has leapt forward since Lane’s day, while America has wallowed, indeed probably regressed, on the frontiers of individual liberty. Revisited today, Lane’s observations prompt an uncomfortable question: what if the roles have reversed? 

Lane wrote from direct experience. Having spent years in 1920s Europe, first as a writer for the Red Cross and later as a roving correspondent, she saw a remarkable cross-section of European society from France to Albania as it dug itself out of the ruins of World War I. Her essential observation was that Europe, in terms of exercising freedom, was frightfully retrograde—“for all the years of my residence in Europe,” she wrote, “a great many obstacles were enforced upon me by the police-power of the men ruling the European States.”

Her examples are vivid. She reminded her American readers that they thankfully “were not obliged,” as Europeans then were, “to carry at all times a police card, renewed and paid for at intervals, bearing our pictures properly stamped and stating our names, ages, addresses” and other personal details. They sound suspiciously like today’s driver’s licenses, which, while not technically required “at all times,” are effectively required for general day-to-day life, especially travel. As we know them now, this form of identity card did not unfold US-wide until the 1940s. Lane would no doubt be shocked.

She was horrified, after all, by police raids in Budapest where working-class neighborhoods were upended in the name of “public order” and their “workingmen’s cards” checked to ensure they were employed in their proper capacity. Lane noted that the working families’ “terror at the sight of uniforms was abject. All rose meekly and raised their hands. The policemen grinned with the peculiar enjoyment of human beings in possessing such power.” Such raids are more or less unheard of in Europe today, yet bear an uncanny resemblance to the ICE raids sweeping America coast-to-coast now. Regardless of where one comes down on the proper enforcement of immigration, the fact that modern America so resembles Europe of the 1920s should give us pause.

Such intrusions on liberty, Lane noted, were always justified by a “good motive, and a rational one.” “Public safety” and “good order” were the professed justifications for outrageous personal invasions of liberty in Europe, but Lane very rightly pointed out that social order was in fact perfectly possible amongst “multitudes of free human beings” without the heavy hand of state enforcement. She questioned, for instance:

whether there was less crime in police-controlled Europe than in America … there is no section of an American city which I would fear to go into alone at night. There were always many quarters of European cities that were definitely dangerous after nightfall, and whole classes of criminals who would kill any moderately well-dressed man, woman or child for the clothes alone. 

It’s strange to read, decades later. Regardless of how accurately Lane’s perception aligned with reality at the time, the unequivocal fact today is that American cities have homicide rates several times higher than European ones. A comparison of the five largest American cities to the largest European ones shows a homicide rate of around 12.3 per 100,000 in the US versus a rate of around 1 per 100,000 in Europe. This inversion begs a question: Is there perhaps a direct correlation between freedom and security, as Lane intimated? We’re often taught to assume the reverse—that we can only gain security by trading off freedoms—but the fact that Europe and America have apparently switched places implies the opposite: European cities today certainly don’t feel more “police-controlled” than American ones, and arguably the rise of militarized police in America contributes, counterintuitively, to more violence. The phenomenon, if true, would corroborate Lane’s essential point: the more overt and violent controls are placed on society, the more violent they become.

Homicide rates and internal security are one thing, but even in day-to-day commercial norms, there has been an inversion of sorts. France, in Lane’s day, required every purchase, no matter how minuscule, to be “recorded in writing in a ledger, in the presence of both buyer and seller, as Napoleon decreed.” This tedious bureaucratic requirement added half an hour to each transaction since lines would inevitably queue as fastidious clerks dutifully recorded every purchase. “Could French merchants change it now?” Lane asked. “It is to laugh, as they say; a phrase with no mirth in it.” Apparently, however, French merchants did change it, as Europeans today from Paris to Kyiv routinely bleep instantly in and out of stores with lightning-fast electronic pay (usually on their phones). The kind of old-school check-writing at grocery stores or for paying utility bills that is still common in much of America is practically unheard of in Europe, and they giggle in consternation at how slow commerce is in modern America. Peer-to-peer transfers, wireless bank transactions, and contactless payments mean Europe is ahead of the US in speed, integration, and cost efficiency. We lag because legacy systems like ACH and banking silos slow modernization efforts.

Do such things matter in the grand scheme of things? Can liberty really be measured by contingent elements like commercial ease and city safety? Surely America stands tall amongst the nations for protecting the more abstruse yet important elements of freedom—things like political rights and civil liberties? According to those who systematically compare such things, not so much. According to Freedom House, the United States stands around 60th in rankings of political and civil freedom, well below almost all of Europe. The conservative Heritage Foundation ranks the United States around 30th in its “Economic Freedom Index,” which assesses nations on metrics like property rights protection, government integrity, and tax burden. The Cato Institute’s “Human Freedom Index” places the US at #17, behind Switzerland, Finland, Norway, Denmark, Ireland, Germany, and even the Czech Republic. There’s room to debate the metrics used to calculate these rankings, but shouldn’t Americans be sobered by the realization that no one seems to think we’re setting the bar for freedom?

But what of high-profile cases, especially in the UK, of governmental crackdowns on free speech? A US State Department report notes that the UK’s vague rules against “hateful” or “offensive” speech can lead to the “perceived weaponization of law enforcement against political views disfavored by authorities.” It’s a valid concern, to be sure, but do these rather haphazard incidents indicate a genuine and troubling structural failure—a foundational crack in European civil society that is being overlooked by freedom indices done by the likes of Cato, Heritage, and Freedom House? It seems unlikely: Cato, for instance, which publishes the least favorable index toward Europe vis-à-vis America, uses “86 distinct indicators of personal and economic freedom,” including (in the realm of freedom of expression) areas of “academic and cultural expression, government censorship, internet censorship, and media self-censorship.” They may not be perfect, but they go to great lengths to compare apples to apples, and it seems rather remarkable that eight of the nations topping Cato’s index are in Europe. As Americans, we need to be careful not to conflate concerning headlines from across the pond with broad, structural truths that get lost in the buzz.

Americans, after all, also wrestle with threats to free expression. Consider the dustup over FCC Chair Brendan Carr’s thinly-veiled attempts to weaponize his bureaucratic powers to revoke broadcast licenses for media companies that “get out of line.” The trouble, it seems, lies on both sides of the Atlantic in this regard: politicians of every stripe find it hard to contain the impulse to stifle liberty in support of their special worldviews. 

As Rose Wilder Lane properly pointed out, illiberalism always creeps under the guise of “Public Safety” and “Good Order,” and in today’s social media age, this kind of order is generally attained by stifling various kinds of “misinformation.” Lord Young, at Britain’s Free Speech Union, notes the delicious irony when “those in authority who accuse their political opponents of trafficking in misinformation are actually—by describing what their opponents are saying as misinformation—trafficking in misinformation themselves.” Clearly, both Europe and America have work to do to better safeguard their citizens’ natural rights, but it would be delusional to assume that America holds a singular or permanent advantage when it comes to securing liberty. 

The truest form of patriotism is one that refuses to traffic in myths and instead demands clear-eyed appraisals of how one’s country is really doing. When Lane wrote in 1930 that “Americans have had more freedom of thought, of choice, and of movement than other peoples have ever had,” she was most probably correct. That is no longer true, sad as it is to say. The fact that America has dropped from the leading ranks is a testament (thankfully) to other nations adopting and perfecting the very principles of laissez-faire liberty we helped pioneer. As freedom-loving Americans, however, we need to take honest stock of where we are heading and attempt to reinvigorate the freewheeling individualist ethos that made America free in the first place.