The Originalist Revolt: How a Conservative Scholar's Bombshell Challenges the Unitary Executive Theory

The Intellectual Earthquake in Conservative Legal Thought

In what can only be described as an intellectual earthquake within conservative legal circles, Professor Caleb E. Nelson of the University of Virginia—a respected originalist scholar and former clerk to Justice Clarence Thomas—has delivered a stunning challenge to decades of conservative legal orthodoxy. His recent scholarship directly confronts the longstanding conservative position on the unitary executive theory, arguing that the Constitution’s text and historical context actually grant Congress broad authority to shape the executive branch, including imposing limits on the president’s power to remove officials.

This intervention comes at a critical juncture in American constitutional law. The Supreme Court’s conservative majority has been steadily moving toward expanding presidential removal power, with Chief Justice John G. Roberts Jr. making this project a signature initiative during his two decades on the bench. Professor Nelson’s article, published in September and immediately hailed as a “bombshell” by University of Chicago law professor William Baude, represents the most significant internal challenge to this judicial trajectory.

The Historical Context of the Unitary Executive Theory

The unitary executive theory has been a cornerstone of conservative legal thinking for decades. This interpretation insists that the Constitution’s original meaning requires letting the president remove executive branch officials as he sees fit, granting the chief executive complete control over the executive branch. Conservatives have argued that this follows necessarily from the Constitution’s vesting of “the executive Power” in the president alone, and that congressional efforts to shield leaders of independent agencies from political removal violate this constitutional design.

This theory gained particular prominence during the Reagan administration and became a defining feature of the Federalist Society’s constitutional vision. It has been invoked to challenge the constitutionality of independent agencies, special counsels, and any congressional attempt to insulate executive branch officials from direct presidential control. The theory reached its apotheosis in the Trump administration, which invoked unitary executive principles to justify numerous controversial actions.

Professor Nelson’s Revolutionary Scholarship

Professor Nelson’s article fundamentally challenges this conventional wisdom through meticulous originalist analysis. He re-examines the very historical evidence that Chief Justice Roberts relied upon in his 2020 majority opinion regarding presidential removal power—the debates at the first Congress in 1789. Where Roberts found consensus, Nelson discovers ambiguity and contradiction.

Nelson’s research reveals that the founding generation had no clear consensus on the scope of presidential removal power. The textual and historical evidence, he argues, is “far more equivocal than the current court has been suggesting.” This conclusion strikes at the heart of the judicial project to expand presidential power under the banner of originalism.

The implications of Nelson’s analysis are profound. He demonstrates that allowing presidents to fire officials “for reasons good or bad” grants them “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.” This warning about concentrated executive power should resonate with all Americans who cherish limited government.

The Immediate Legal Impact

The practical significance of Nelson’s scholarship is already evident in current litigation. His article has been repeatedly cited by lawyers for Federal Trade Commission member Rebecca Kelly Slaughter, whose firing is at issue in a case before the Supreme Court. In their brief, Slaughter’s attorneys use Nelson’s research to argue against expansive presidential removal power.

The Trump administration’s lawyers tellingly dismissed these arguments as merely “rehash[ing] objections to the removal power” from Nelson’s “recent essay.” This response reveals both the significance of Nelson’s intervention and the discomfort it causes among proponents of maximal presidential power.

The Broader Constitutional Crisis

Professor Nelson’s scholarship arrives during a constitutional moment of exceptional danger. The relentless expansion of presidential power—across administrations of both parties—has created an executive branch that increasingly resembles the imperial presidency that the Founders feared. The erosion of congressional authority and the delegation of legislative power to executive agencies have fundamentally altered the balance of powers envisioned by the Constitution.

This concentration of power poses existential threats to American democracy. When presidents can remove officials who resist their politically motivated directives, the rule of law gives way to personal rule. When independent agencies become subordinate to political whims, expert governance is replaced by partisan manipulation. When Congress cannot structure the executive branch to ensure accountability, the people’s representatives lose their ability to check executive overreach.

The Principles at Stake

As defenders of liberty and limited government, we must recognize that true originalism isn’t about achieving particular policy outcomes or empowering favored political actors. It’s about faithful adherence to the Constitution’s text and original understanding—even when that understanding contradicts political preferences.

Professor Nelson exemplifies this principled approach. As he writes, “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.” His willingness to follow the evidence where it leads, regardless of political consequences, represents the highest form of legal scholarship.

This commitment to intellectual honesty stands in stark contrast to the results-oriented jurisprudence that sometimes masquerades as originalism. The conservative legal movement faces a crucial test: Will it embrace rigorous scholarship that challenges its assumptions, or will it reject inconvenient truths in pursuit of political power?

The Path Forward for Limited Government

Those of us who believe in limited government should welcome Professor Nelson’s intervention. Concentrated power in any branch—including the executive—threatens liberty. The Constitution’s system of separated powers and checks and balances exists precisely to prevent any single branch from dominating the others.

Congressional authority to structure the executive branch and limit presidential removal power is not an obstacle to effective governance—it’s a essential feature of constitutional government. Independent agencies with leaders protected from arbitrary removal can make decisions based on expertise rather than political calculation. They can enforce laws without fear of reprisal from presidents who dislike their conclusions.

This doesn’t mean that presidents should have no control over the executive branch. But it does mean that Congress has constitutional authority to create mechanisms that ensure accountability, professionalism, and independence where appropriate. The Founders understood that effective government requires both energy in the executive and restraint through institutional design.

Conclusion: Reclaiming Originalism’s Soul

Professor Caleb Nelson’s scholarship represents more than just an academic debate—it’s a fight for the soul of originalism and the future of American constitutional government. His demonstration that originalism doesn’t necessarily lead to expansive presidential power should liberate conservative jurisprudence from its increasingly authoritarian tendencies.

We must embrace an originalism that prioritizes limited government over executive power, that celebrates congressional authority as a feature rather than a bug, and that remains faithful to the Constitution’s complex design rather than simplistic theories. The survival of our republic depends on maintaining the delicate balance of powers that the Founders established.

As the Supreme Court considers cases that will shape the presidency for generations, the justices should heed Professor Nelson’s warning: granting presidents unlimited removal power gives them more authority “than any sensible person should want anyone to have.” In a democracy, no person should possess that much power—no matter which party they represent or what policies they pursue. The Constitution’s wisdom lies in its distribution of power, and its preservation requires our vigilance against all concentrations of authority, whether in the executive, legislative, or judicial branches.