The Emperor's New Clothes Originalism
Law Professor Caleb Nelson made a big splash this week by arguing that under the text and original meaning of the Constitution, Congress has the power to place limits on the President's ability to fire most executive officers. If he is right, the Roberts Court's many cases to the contrary are incorrect as an originalist matter. Additionally, most people expect the Court to reverse the landmark case known as Humphrey's Executor later this term. That decision allowed the Congress to insulate the commissioners of the Federal Trade Commission from termination by the President absent cause. If Professor Nelson is right (and he is), that reversal will also be a mistake as an originalist matter. What makes all of this so newsworthy according to The New York Times , The New Republic , and many other outlets is that Professor Nelson is a former Justice Thomas law clerk and a self-identifying originalist whose work is often cited by the conservative justices in their opinions. Her...