Beware of Selective Originalism by Trump—or Anyone Else

One of the Trump administration’s recent efforts to expand presidential power has come to the fore as the government has renewed Trump’s highly contested claim that the “original public meaning” of the Constitution creates a “unitary executive,” which lets any president dismiss at will any member of the so-called independent agencies that today routinely enforce major substantive legislation, including many of the alphabet agencies of the New Deal. This debate over constitutional interpretation came to a head in the recent case of Wilcox v. Trump, in which District Court Judge Beryl Howell strongly rebuffed the effort of President Trump to fire Wilcox as the Chairman of the National Labor Relations Board on the ground that constitutionally she was only an at-will employee, even though Congress had stipulated that she could only be dismissed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”

To Judge Howell, the case was easy because she concluded the theory of the unitary executive had been rejected since the earliest times. That understanding was followed by an “unbroken practice” whereby members of multiple-member independent boards received this protection as the best way to get independent and expert advice on critical and complex matters. The key case that supports this view was and is Humphrey’s Executor v. U.S. (1935), which protected Humphrey—a Herbert Hoover appointee to the Federal Trade Commission—from dismissal by Franklin Roosevelt because Humphrey’s position was “quasi-legislative” and “quasi-judicial” rather than simply executive. That odd verbal confection was not any part of the original Constitution, whose tripartite division in Articles I through III calls for a strict separation of three branches of government into legislative, executive, and judicial parts. Judge Howell cites at length the influential article of Professors Lawrence Lessig and Cass Sunstein that defends Humphrey’s as an original understanding, but the contrary view of Professors Steven Calabresi and Christopher Yoo is more persuasive in arguing that the Founders envisioned an energetic president who could direct his unified cabinet and be held accountable when matters went wrong. Nothing that Judge Howell writes undermines their historical claims.

Yet, she is on far firmer ground in insisting that changed conditions in the polity explain the durability of the independent commission removable only for cause. The first agency set up along those lines was the Interstate Commerce Commission in 1887, which was never challenged on structural grounds. Thus, Humphrey’s dealt not with some new-fangled invention of 1933, but with an established practice that would have been far easier to stop before it took root, and far more difficult to undo afterwards. That reliance interest always matters, even if it cannot be decisive in all cases. But in this instance, the cross-currents matter because our constitutional design rests on two clashing principals—separation of powers and checks and balances. The commission model strengthens the second, which cannot be wished away, even if, as Professor Dan Crane has argued, the FCC today is more political than expert—unevenly divided between Democratic and Republican members and headed by a chairman picked by the president—and neither quasi-legislative nor quasi-judicial. But at the same time, the vastly expanded powers of the federal government under its commerce power make the commission model, for all its imperfections, relatively more attractive in 1935, and certainly today, than that of the Unitary Executive. That long practice carries real weight, especially since Trump’s planned removal of Wilcox reduces the NLRB to two members, one below the necessary quorum.

I argued in my 2014 book, The Classical Liberal Constitution, that prescription, or long and continuous usage, works the same role in public affairs as it does in cases of prescriptive easements. Long usage creates a strong reliance interest, and thus, key features of the Constitution survive in flat contradiction to the original constitutional design. Recall that originally the federal government received its powers by grant from the states, who by design imposed strict limits to cripple the power of the Supreme Court to declare either federal or state laws unconstitutional. Thus, the Congress could limit the Supreme Court’s power of appellate review under Art. II, Section 2, cl. 2, “both as to law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” The Court, in this view, is not a coequal branch of the federal government, let alone the supreme interpreter of the Constitution. Chief Justice Marshall misread Section 13 of the Judiciary Act of 1789 in Marbury v Madison (1803).  But it was only  over 150 years later that the Supreme Court explicitly embraced this view in 1958 in Cooper v. Aaron, decided at the height of the desegregation disputes. Similarly, the initial device under the Supremacy Clause had state judges, not the Supreme Court, check unconstitutional activities by Congress notwithstanding any provision of state law under Article VI, Section 2, until Justice Joseph Story read Section 25 of the 1789 Judiciary Act to transfer that power to the Supreme Court in Martin v. Hunter’s Lessee (1816). Do any originalists want to go back to the prior system?

Similar challenges can be made to other Supreme Court decisions. Citizens of the United States entitled to sue under federal diversity jurisdiction only included corporations after the Supreme Court moved the ball in that direction in United States v. Bank of Deveaux (1809).  About the same time, the original version of the Constitution conceived of the Electoral College, as its name suggests, as a body whose members were supposed to be chosen in each state by deliberative assemblies. The scheme was so manifestly impracticable that early on, the delegates no longer deliberated over the choice but pledged themselves to vote as a group for their designated candidate so that the electors could not override the voters’ majority preferences. The Supreme Court validated this practice in Ray v. Blair (1952). Sixty-eight years later when individual electors sought to bolt from Donald Trump, Justice Elena Kagan, in Chiafolo v. Washington (2020), advanced a dubious originalist argument denying the deliberative nature of the electoral college before she hit the prescriptive explanation: “Long settled and established practice” may have “great weight in a proper interpretation of constitutional provisions.”

The same logic applies to the rise of Article I courts, which are nowhere provided for in the Constitution.  These came about in Murray’s Lessee v Hoboken Land and Improvement Co (1856), which upheld a long-established practice that the customs office had the power to adjudicate cases where it was alleged that a citizen had cheated on its custom duties because the informal review practices within the custom offices had been in use for over forty years even though the ruling officials did not have lifetime tenure. Again, long practice mattered, and in this instance, the model proved so attractive that today, Article I courts deal with taxation, bankruptcy, veterans’ claims, military matters, and more. The obvious inconvenience of the standard Article III requirement of lifetime tenure no longer applies to courts now used to carry out specific functions.

Finally, the ultimate irony in the expansion of federal powers concerns the assumption of Congress’s power over immigration. The original structure could not be clearer. The Congress had the power to set up a uniform rule of naturalization whereby aliens could become citizens under Article I, Section 8 cl. 4. But given that the federal government received only few and defined enumerated powers, immigration remained with the states. All that changed with the Chinese Exclusion Act of 1882, whose first sentence reads: “Whereas in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof.”  Ping v. United States upheld the power of the United States to exclude Chae Chan Ping, who was a lawful noncitizen resident of the United States who was blocked from returning to the U.S. even though he had received official written permission from the United States government to do so[RR1] [RE2]  after he visited China in 1887.  The Scott Act of 1888 explicitly prohibited his return, declaring that the presence of Chinese laborers had “a baneful effect upon the material interests of the state, and upon public morals,” and thus counted as an “Oriental invasion, and . . . a menace to our civilization.”  And so, without citation to any constitutional text, Justice Field held that “the power of exclusion of foreigners [was] an incident of sovereignty” which “cannot be granted away or restrained on behalf on any one” by any government contract.

So much for the doctrine of enumerated powers. The faithful originalist would have to hand power over immigration back to the states, leaving Trump powerless to initiate his programs.  Strip away the obnoxious language of these statutes and rulings, and changed circumstances justify concentrating control over immigration in federal hands, even if they are capable of real abuse. Originalism is the correct first step in constitutional interpretation, but it is not its last step given the need to incorporate established practice into law, even if that power of prescription does not allow modern justices to make up new law as they will.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013.