The New York Times reports:

The Supreme Court will hear arguments in December about whether President Trump can fire government officials for any reason, or no reason, despite laws meant to shield them from politics.

There is little question that the court will side with the president. Its conservative majority has repeatedly signaled that it plans to adopt the “unitary executive theory,” which says the original understanding of the Constitution demands letting the president remove executive branch officials as he sees fit.

But a new article, from a leading originalist law professor, has complicated and perhaps upended the conventional wisdom. The legal academy treated the development like breaking news.

“Bombshell!” William Baude, a law professor at the University of Chicago who himself is a prominent originalist, wrote on social media. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.

Professor Nelson, who teaches at the University of Virginia and is a former law clerk to Justice Clarence Thomas, wrote that the text of the Constitution and the historical evidence surrounding it grants Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people.

Professor Nelson’s article was published Sept. 29 by the Democracy Project, an initiative at the New York University School of Law that plans to release 100 essays in 100 days by an ideologically mixed group.

The article is particularly notable, said Richard H. Pildes, who is a law professor at N.Y.U. and one of the project’s founders.

“If a highly respected originalist scholar like Professor Nelson, on whom the court relies frequently, denies that originalism supports the unitary executive theory,” Professor Pildes said, “that inevitably raises serious questions about an originalist justification for the court’s looming approach.”

Professor Nelson’s scholarship has been exceptionally influential. It has been cited in more than a dozen Supreme Court opinions, including ones by every member of the six-justice conservative majority. [Continue reading…]

Caleb Nelson wrote:

If most of what the federal government currently does on a daily basis is “executive,” and if the President must have full control over each and every exercise of “executive” power by the federal government (including an unlimitable ability to remove all or almost all executive officers for reasons good or bad), then the President has an enormous amount of power—more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.

I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes. But both the text and the history of Article II are far more equivocal than the current Court has been suggesting. In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.

When the First Congress confronted the same ambiguities, more than one member warned against interpreting the Constitution in the expectation that all Presidents would have the sterling character of George Washington. The current Supreme Court may likewise see itself as interpreting the Constitution for the ages, and perhaps some of the Justices take comfort in the idea that future Presidents will not all have the character of Donald Trump. But the future is not guaranteed; a President bent on vengeful, destructive, and lawless behavior can do lasting damage to our norms and institutions. As one member of Congress argued in 1789, we should not gravitate toward interpretations of the Constitution that “legaliz[e] the full exertion of a tyrannical disposition.”