I have been working on a paper that seeks to apply Julian Mortenson’s brilliant “law execution” thesis to removal power. In the paper, I argue that, because the Article II vesting clause is not a grant of inherent powers to the President, removal power may be limited by Congress. The current jurisprudence on removal power is therefore consistent with the original meaning of the Constitution’s text and history.
Here is the abstract:
Recent scholarship has advanced a theory of executive power that has been termed the “law execution” thesis. This thesis holds that, contrary to mainstream conservative interpretations, “the executive Power” was not a grant of inherent powers at all. Rather, it was a vessel that relied on Congress to pass legislation for execution. Taking that thesis as correct, this paper argues that the President does not possess an unlimited power to remove executive branch officers. Instead, Congress may, pursuant to its enumerated powers, place legislative limits on removal. The Branches have historically acquiesced to these limitations, and the Supreme Court has consistently upheld minor limitations on presidential removal power. In other words, this limitation is justified based on text, practical considerations, and historical practice.
This paper further argues that historical practice is instructive for removal because it shows that history has been consistent with the original meaning of the Article II Vesting Clause. Given the limited scope of executive power, removal has properly been shared between Congress and the President, and upheld by the Supreme Court. Indeed, because of the limited scope of executive power, historical practice plays a necessary role in properly placing removal power within the structure of the Constitution. This article also synthesizes the mainstream conservative interpretations of removal power, and shows that these interpretations are wrong on text, history, and practice. Given the limited scope of the original meaning of presidential power, originalist scholars should accept existing limitations on removal power as correct. This paper seeks to add to the existing literature by applying the law execution thesis to removal power, and by arguing that removal has properly been construed as resting with Congress and the President together.
A draft of the paper will be posted to SSRN soon. All comments are welcome! Email me at patsobkowski@gmail.com.
Expounding the Constitution 