Judge Uses Originalism to Reject Unitary Executive Theory

Shortly after his inauguration, President Trump removed Gwynne Wilcox from her post as a member and Chair of the National Labor Relations Board (NLRB). Wilcox responded by filing suit in the District Court for the District of Columbia seeking two types of relief. First, she requested the court declare her removal unlawful. Second, she sought injunctive relief against acting NLRB Chair Marvin Kaplan to force him to reinstate her as a full member of the NLRB. Wilcox argues that her firing violates the National Labor Relations Act.

The Department of Justice argues—in line with the unitary executive theory—that the Constitution gives President Trump the power to remove members of independent agencies with multimember boards like the NLRB without being hindered by statutory checks. The unitary executive theory holds that Article II of the Constitution gives all executive power to the elected president, and that therefore the president must exercise full control of the executive branch—unhindered by Congress—including by being able to remove executive branch officials at will. Judge Beryl Howell rejected DOJ’s argument, ordered Wilcox’s reinstatement to the NLRB, and granted the injunction against Acting Chair Kaplan.

Notably, Judge Howell used originalist reasoning to reject the unitary executive theory underlying the government’s position. Judge Howell began her analysis by examining the American Revolution, arguing that rejecting the rule of kings and arbitrary exercises of executive power was central to it. She noted that the separation of powers is intended to prevent abuses of power which can lead to a monarchical type of autocracy.

Judge Howell next pointed out that the text of Article II does not mention the power to remove executive branch officials, and that our understanding of the removal power has evolved over time. The Decision of 1789 concluded that the president could remove the executive officers at will, but it did not resolve the question of whether removal power stems from the Constitution or Congress’ own Article I prerogative. Post-1789, Congress continued to exercise authority over the creation and organization of other federal departments. Because of this practice, Judge Howell concluded that the Decision of 1789 was never intended to grant the president unlimited removal power, but rather permitted Congress to define the scope of its authority over executive departments because the removal power stemmed from Congress’ Article I prerogative to create executive departments. She reasoned that the history and immediate post-ratification practice she recounts shows that Congress never viewed the executive as unitary, which is why it began creating independent agencies in 1887 and has embraced that practice ever since.  

And the Supreme Court blessed the practice in Humphrey’s Executor. Even when the Supreme Court limited restrictions on presidential removal power in Seila Law v. CFPB, it did not end the practice. Judge Howell concluded this binding precedent is proof that history and tradition support Congress’ ability to create independent agencies and impose limits on presidential removal.

Many—if not most—originalists argue that the original understanding of the Constitution supports some version of the unitary executive. But this opinion shows that originalist arguments can be made against unitary executive theory when relying on a mix of pre-constitutional history and liquidation. Judge Howell’s originalist analysis calls into question the notion that a unitary executive is the inevitable outcome of an originalist approach. But originalists who favor the unitary executive have plenty of tools available to defend their theory. The Supreme Court will ultimately have to weigh in on which version of originalist reasoning it prefers—likely very soon.