The Supreme Court's oral argument in Securities and Exchange Commission v. Jarkesy, a case with multiple issues of originalist interest, will be tomorrow, 11/29. As Ronald Mann at SCOTUSblog describes it:
[Jarkesy] will present a remarkable spectacle of three entirely distinct constitutional challenges to wholly disparate attributes of the SEC. Ordinarily, the ability of the justices to control their docket would allow them to wait on each question for the development of a circuit conflict and select a suitable case in which to resolve each issue. But in this case a bold (I did not say “rogue”) panel of the U.S. Court of Appeals for the 5th Circuit accepted all three arguments and invalidated three aspects of the SEC’s operations. To leave the decision unreviewed would force Congress to revise substantially the affected portions of the securities laws solely based on the opinion of one divided lower court panel – hence, the Supreme Court’s buffet of constitutional law topics on Wednesday morning.
Here are the questions presented:
(1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
I don't have an originalist view on the specific removal question (#3 above) because I haven't looked into the details of how administrative law judges function. But I do have an originalist view on presidential removal more generally, and since some fairly harsh things have been said about originalist methodology in connection with this issue recently, I thought it would be useful to briefly summarize the argument.
The basic originalist position I and others have defended is that Article II generally requires that the President have unrestricted removal authority over federal officers who exercise significant executive authority. In my view (and I'm writing only for myself here), the argument has three main components.
(1) The text. The core of the argument is textual rather than historical. Article II, Section 1 says that "[t]he executive Power shall be vested in a President of the United States of America." As Justice Scalia famously said in dissent in Morrison v. Olson, "this does not mean some of the executive power" (or, I would add, even most of the executive power) "but all of the executive power." (487 U.S. at 705) And if it "shall be vested" in the President, then by obvious negative implication it shall not be vested in anyone who is not the President. (As an aside, I don't attach any particular importance to the word "vested" here -- it would mean the same, I think, if it said "shall be exercised by".) Of course, everyone at the time assumed Congress would provide officers to assist the President in exercising the executive power, as it surely couldn't be done by a single person. But providing officers to assist in execution wouldn't be contrary to vesting executive power in the President so long as the President had the ability to control the officers -- a point reinforced by the President's duty in Article II, Section 3 to take care that the laws are faithfully executed.
To be sure, one could structure an executive branch differently. A constitution could direct that the attorney general, for example, be entirely independent of the President. But in that circumstance one would not say that the executive power is vested in the President, since much of the executive power would be in fact vested in the attorney general, beyond the President's control. And the Constitution we actually have says that the the executive power "shall be" -- that is, must be -- vested in the President.
Various lawyers and law professors have offered ingenious arguments to show why Article II doesn't necessarily mean what it appears to say, but I don't find them persuasive. They seem at most to show that the text could possibly be read to mean something different, not that it most plausibly (or even somewhat plausibly) could be. Nor do I understand what they think the consequences of their arguments are: could Congress create an office of attorney general with a lifetime appointment, removable only through impeachment? In what sense would that structure be consistent with the direction that the executive power be vested, not in the Attorney General, but in the President?
In short, I think the text is sufficiently clear that only very strong history could overcome its apparent meaning. The history, though, is ambiguous at best, and generally tends to confirm the most evident reading of the text.
(2) The English background. The drafters of Article II likely had in mind Blackstone's description of the executive power, which emphasizes the unity of the monarch:
the executive part of government ... is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay that the exigencies of state will afford. The King of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him. (vol. 1, pp. 242-43)
It's hard to read this description without concluding that the monarch had full control over executive officers, and the framers were presumably familiar with monarchs removing ministers and other high officials who displeased them. Blackstone's description also contrasts sharply with his later description of the judicial power (sometimes described by other sources as a branch of the executive power), which Blackstone thought was rightly rendered independent by the Act of Settlement's limits on the crown's ability to remove judges.
Blackstone acknowledged in later chapters that the tenure of some local offices was limited by law or custom, and Professor Jed Shugerman has shown that in fact the situation was somewhat less coherent, with a patchwork of rules applying to various offices (a situation that may or may not have been full understood by the American framers). But none of this seems to me to undermine the basic thrust of the passage quoted above -- that the ideal, at least, was a unitary model of the executive.
(3) Post-ratification practice and commentary. The evidence from the early post-ratification period also has some ambiguities, but it generally supports the text's most apparent meaning (and in any event it does not point in the opposite direction).
(A) In 1789, when Congress was creating the executive departments, Madison and others expressed the view stated above -- that the President had constitutional authority to remove executive officers as part of the executive power and the take-care duty. Madison of course was sometimes mistaken as to constitutional meaning, and others at the time disagreed. But his argument reflects what someone close to the drafting thought about it, with additional weight given that, as a member of Congress, he was taking a view contrary to his institutional interest. Further, while Congress debated the matter at great length, its ultimate products -- the statutes it enacted in 1789 -- are most consistent with Madison's reading. (I say more on this point in a new article: Presidential Power and What the First Congress Did Not Do.)
(B) In practice, early Presidents beginning with Washington removed executive officers without statutory authorization, relying on their constitutional power. Generally this practice did not provoke strong opposition on constitutional grounds, even when the removal was contested for other reasons (as with Washington's removal of James Monroe as ambassador to France). And generally Congress in this period did not limit removal authority of officers with substantial executive power (although there are some episodes at the margins that may be difficult to characterize.)
In sum, while the history does not all point in the same direction, it tends to support the President's constitutional right of removal as to principal executive officers, and in any event it is not unambiguous enough to overcome the clear direction of the text.
(This is of course only a quick sketch, and each point could be elaborated with additional detail and further consideration of counterarguments. The goal here, though, is only a quick sketch.)