Friday, September 1, 2023

Driesen on Story on the Removal Power

David M. Driesen, Syracuse University College of Law, has posted Does a Removal Power Exist? Joseph Story and Selective Living Originalism:

Joseph Story (NYPL)
Justice Joseph Story’s famous Commentaries on the Constitution of the United States includes an extended discussion of the power to remove executive officers. In spite of burgeoning interest in the unitary executive theory, which maintains that the Constitution grants the President unfettered removal authority, Story’s landmark treatment has not received sustained attention. This article analyzes Story’s treatment of the removal power.

Story’s commentaries suggest that the Constitution does not empower the President to unilaterally remove executive officers. Instead, Story explains, removal occurs by operation of law when the Senate approves a new nominee to replace an incumbent official that the President wishes to replace. Story’s analysis shows that this view enjoys substantial originalist support. Indeed, evaluation of the evidence supporting this view shows that the Supreme Court’s contrary view stems from selective originalism — where only a portion of constitutionally germane text is analyzed and only a moment of constitutional history is given any weight. This article’s analysis of Story’s views casts a fresh light on the modern Court, suggesting that the Supreme Court practices living originalism by favoring originalist sources that support its own views of what political arrangements best meet current needs. 
--Dan Ernst