The Impact of Originalism on the Scope of Executive Powers

Defining Originalism: Scarcely a Monolithic Theory

The term “originalism” encompasses a family of interpretive methods rather than a single, lockstep doctrine. At its core, originalism holds that the meaning of constitutional text was fixed at the time each provision was ratified. Yet within that broad tent, two prominent branches have emerged: original intent and original public meaning.

Original intent—championed by figures such as Attorney General Edwin Meese III in the 1980s—asks what the Framers themselves subjectively believed a clause meant. Critics quickly pointed out the difficulty of divining the collective intent of dozens of delegates, many of whom left scant records. This led to the ascendance of original public meaning, associated most famously with Justice Antonin Scalia. Under this approach, the relevant inquiry is what a reasonable person at the time of ratification would have understood the text to mean, given the linguistic and cultural context. As Scalia wrote in A Matter of Interpretation, “it is the original meaning of the constitutional text, not the subjective intent of the Framers, that is binding.”

This distinction matters immensely for executive power. An original-intent inquiry might unearth private letters from James Madison or Alexander Hamilton to glean their views on presidential prerogatives. An original-public-meaning analysis, by contrast, examines dictionaries, newspapers, and legal treatises from the 1780s and 1790s to determine how a contemporary citizen would have understood phrases like “executive Power,” “Commander in Chief,” or “take Care that the Laws be faithfully executed.”

Originalism and the Architecture of Executive Authority

Article II of the Constitution begins with a deceptively simple grant: “The executive Power shall be vested in a President of the United States of America.” Originalists have long debated whether this Vesting Clause confers a broad, residual reservoir of authority (the so-called “unitary executive” theory) or merely designates the President as the officer who will exercise the specific powers enumerated later in the article.

Justice Scalia’s dissent in Morrison v. Olson (1988) exemplifies the originalist case for broad executive power. He argued that the independent counsel statute, which limited the President’s removal power over a subordinate prosecutor, violated the original understanding that “all executive power is vested in the President.” Scalia traced this principle back to the Framers’ fear of a plural executive like the Roman consuls or the Continental Congress’s committees. The original public meaning of “executive Power,” he contended, necessarily included the power to direct and remove inferior officers—otherwise the President would not be truly “executive.”

Other originalists reach the opposite conclusion. Professor Michael Rappaport of the University of San Diego School of Law, for instance, argues that the original meaning of Article II permits significant Congressional regulation of the executive branch, so long as the President retains core functions like veto power and command of the military. The Constitution’s text, structure, and history, he claims, do not mandate a wholly unitary executive.

The Take Care Clause as an Originalist Wedge

The Take Care Clause—the President “shall take Care that the Laws be faithfully executed”—is another originalist battleground. During the impeachment trial of President Bill Clinton, originalists debated whether “faithfully executed” implied a duty of honest enforcement or gave the President discretion to delay or ignore laws he deemed unconstitutional. The Clinton-era independent counsel statute, overturned in Morrison, had already shown how originalist reasoning could cut both ways.

More recently, originalist scholars have examined the Clause’s English and early American antecedents. They point to the 1790s controversy over President Washington’s proclamation of neutrality in the war between France and Great Britain. The “Pacificus-Helvidius” debate between Alexander Hamilton (writing as Pacificus) and James Madison (writing as Helvidius) directly engaged the original meaning of executive power. Hamilton argued for a broad inherent authority to conduct foreign affairs; Madison insisted the President could only act where the Constitution specifically delegated power. Originalist judges and commentators still invoke these founding-era exchanges to support competing theories of presidential unilateralism.

Landmark Cases Through an Originalist Lens

Youngstown Sheet & Tube Co. v. Sawyer (1952) – The Steel Seizure Case

The Supreme Court’s 6–3 decision striking down President Truman’s executive order seizing steel mills during the Korean War is a classic originalist touchstone. Justice Hugo Black’s majority opinion took a formalist, text-driven approach: the President possessed no constitutional or statutory authority to seize private property, and the Taft-Hartley Act provided an alternative legal remedy. Black’s opinion did not invoke originalism by name, but it reflected an originalist commitment to limited, enumerated powers.

Justice Robert Jackson’s concurrence, however, introduced the now-famous tripartite framework (president at zenith, twilight, or lowest ebb of power) that has proven more enduring. Originalists often praise Jackson’s structural analysis, which grounds presidential power in the text and inter-branch relationships, even as they criticize his suggestion that congressional silence could implicitly expand executive authority.

United States v. Nixon (1974) – The Limits of Executive Privilege

The unanimous decision ordering President Nixon to produce the Watergate tapes rested partly on the principle that no person, not even a President, is above the law. Chief Justice Burger’s opinion recognized a presumptive executive privilege for military and diplomatic secrets—a privilege he rooted in the separation of powers—but held that a generalized need for confidentiality could not outweigh the fundamental demands of due process and criminal justice.

Originalist commentators have defended this outcome as consistent with the founding generation’s rejection of monarchical prerogative. They note that the Framers explicitly chose to omit from Article II any suggestion that the President could withhold evidence from judicial proceedings. The Nixon decision, in this view, faithfully applied the original public meaning of the President’s obligation to “take Care that the Laws be faithfully executed.”

Trump v. Hawaii (2018) – The Travel Ban Case

Perhaps the most significant originalist debate in recent executive-power jurisprudence came in the challenge to President Trump’s travel ban. The government defended the proclamation as a lawful exercise of broad presidential authority over immigration and national security, citing United States ex rel. Knauff v. Shaughnessy (1950) and the “plenary power” doctrine dating back to the Chinese Exclusion Case (1889). Critics argued that the ban violated the Establishment Clause and exceeded any original understanding of executive power.

Justice Thomas, concurring, offered a strongly originalist analysis. He argued that the President’s authority to suspend entry of aliens was “virtually unfettered” under the original meaning of Article II and the Naturalization Act of 1790. Justice Sotomayor, in dissent, countered with a competing originalist argument: the founding generation’s experience with religious tests and oaths demonstrated that the Establishment Clause prohibited official discrimination based on religion, regardless of immigration context. The case illustrates that originalism does not automatically favor expansive executive power; the interpretive method can produce results favoring either side, depending on which historical sources and analogies one privileges.

Originalism in the Administrative State

One of the most consequential applications of originalist reasoning to executive power involves the administrative state—the sprawling network of federal agencies that exercise legislative, executive, and judicial functions. Originalists generally argue that the New Deal and Great Society programs created a “fourth branch” of government that the Constitution’s text and structure do not countenance. The nondelegation doctrine, which prohibits Congress from transferring its legislative power to the executive, has been a particular focus.

In Gundy v. United States (2019), the Supreme Court considered whether a federal sex-offender registration law unconstitutionally delegated legislative power to the Attorney General. Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, dissented from the majority’s decision to uphold the delegation. His opinion, rooted in original public meaning, traced the nondelegation principle from John Locke through the founding debates. He argued that the Constitution’s Vesting Clauses create three separate, distinct powers and that “the people’s elected representatives in Congress” alone may exercise “the legislative power.”

Gorsuch’s dissent has become a rallying cry for originalists seeking to rein in presidential discretion over rulemaking, enforcement priorities, and agency adjudication. If the nondelegation doctrine were revived, the President’s ability to direct agencies to adopt new regulations or to shift enforcement strategies would be sharply constrained—because the agencies themselves would hold less delegated authority in the first place. The full impact remains theoretical, as the Court has not struck down a federal statute on nondelegation grounds since 1935. But the doctrinal pressure is real.

Originalism and the Unitary Executive in the 21st Century

The unitary executive theory (UET) holds that the President possesses plenary control over all officers exercising executive power, including the power to remove them at will. Originalists often defend UET by pointing to the 1789 “Decision of 1789,” in which the first Congress implicitly recognized the President’s removal authority when it established the Departments of Foreign Affairs, Treasury, and War. James Madison, then a House member, argued that the Constitution’s structure required removal power to reside in the President as part of the “executive Power” vested in him.

This historical episode has been exhaustively debated. Some originalist scholars, such as Professor Steven Calabresi of Northwestern, treat the Decision of 1789 as dispositive evidence of the original public meaning. Others, like Professor Aditya Bamzai of the University of Virginia, point out that the decision was contested at the time and that subsequent Congresses have created independent agencies whose heads are removable only for cause. The dispute highlights a broader challenge for originalism: when the founding-era record contains conflicting evidence, which version of original meaning should control?

Originalism versus Living Constitutionalism on Executive Power

The most fundamental critique of originalism from a pro-executive-power perspective is that the Constitution’s text is too vague to resolve many modern questions. What does “executive Power” mean in the age of electronic surveillance, drone strikes, or pandemic response? Originalists respond that the text’s generality is itself a feature: the Framers deliberately used broad language to grant the President sufficient authority to handle unforeseen circumstances, while the structural checks (Congress’s power of the purse, impeachment, judicial review) provide the necessary safeguards.

Living constitutionalists, by contrast, argue that constitutional meaning must evolve to meet new social and technological realities. Justice Stephen Breyer, in his book Active Liberty, contended that executive power should be interpreted in light of contemporary democratic practice and the practical demands of governance. For example, the President’s emergency powers under the National Emergencies Act of 1976—which have never been subject to originalist scrutiny—could be seen as either a permissible delegation (consistent with originalist precedent) or a dangerously open-ended grant that the Framers would have abhorred.

Originalists often note that the living constitutionalist approach risks allowing judges to impose their own policy preferences under the guise of interpretation. Justice Scalia famously argued that “the Constitution is not a living document; it is dead, dead, dead.” In cases involving executive power, originalists warn that a “living” approach would let the President expand his authority indefinitely, unrestrained by any fixed textual anchor.

Contemporary Controversies and Originalist Analysis

Presidential Emergency Powers

President Trump’s declaration of a national emergency to fund border wall construction sparked heated originalist debate. Did the National Emergencies Act, combined with the Construction of Border Barriers provisions in 10 U.S.C. § 2808, unconstitutionally delegate legislative power? Some originalists argued that the emergency declaration exceeded statutory authority and that Congress had not provided a clear statement authorizing the President to reappropriate funds. Others, like Professor John Yoo, defended the declaration as consistent with the original understanding of presidential war and emergency powers, pointing to President Lincoln’s unilateral actions during the Civil War.

President Biden’s Student Loan Forgiveness Program

The Biden administration’s attempt to cancel up to $400 billion in student loan debt under the HEROES Act of 2003 triggered a major originalist challenge. In Biden v. Nebraska (2023), the Supreme Court—with a 6–3 majority including five originalist-leaning Justices—struck down the program on multiple grounds. The majority, per Chief Justice Roberts, applied the “major questions doctrine,” which requires Congress to speak clearly when it delegates authority over economically or politically significant issues. The dissenters, including Justice Kagan, accused the majority of an activist revision of administrative law.

Originalists have generally praised the major questions doctrine as a modern rebirth of the nondelegation principle. They argue that the founding generation would have required express legislative authorization for any executive action of such magnitude, particularly one involving the expenditure of trillions of dollars. Critics counter that the doctrine is a judicially invented tool that has no basis in original public meaning and that it permits judges to veto executive policies they dislike.

Department of Homeland Security v. Regents of the University of California (2020)

The Supreme Court’s 5–4 decision blocking the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program turned on the Administrative Procedure Act (APA), not constitutional originalism. Yet the case revealed deep originalist divisions. Justice Kavanaugh, in a separate opinion, argued that the rescission was procedurally proper and that the Court should not second-guess the President’s immigration enforcement priorities—a position consistent with originalist deference to executive discretion within statutory boundaries. Justice Thomas, in dissent, went further, suggesting that DACA itself was an unconstitutional exercise of legislative power by the executive. His opinion reflected a robust originalist critique of the entire deferred-action regime, tracing the practice back to President Reagan’s 1987 Family Fairness policy and arguing that the Constitution grants the President no power to create “lawfully present” categories without congressional authorization.

Originalism’s Future Influence on Executive Power

With a conservative supermajority on the Supreme Court that includes several self-identified originalists—Justices Thomas, Gorsuch, Kavanaugh, and Barrett—originalist reasoning will continue to shape the boundaries of presidential authority. The Court has already signalled its interest in reexamining the scope of removal power, the nondelegation doctrine, and the major questions doctrine.

Yet originalism faces internal and external pressures. Internally, the originalist community is fractured over whether to adopt a “original methods originalism” (which incorporates original-era legal reasoning) or a “textualism” that focuses more narrowly on semantic meaning. Externally, critics point to the difficulty of applying 18th-century conceptions of executive power to a 21st-century administrative state, and they worry that originalists selectively choose historical evidence to support predetermined policy outcomes.

Consider the debate over independent agencies. Some originalists argue that the original meaning of Article II forbids any independent agency whose head is not removable at will by the President. Others contend that the 1789 Decision of 1789 is ambiguous and that the founding generation tolerated some forms of independence (such as the First First Bank of the United States, whose directors served fixed terms). This debate has practical consequences for the Federal Reserve, the Securities and Exchange Commission, and the Federal Trade Commission—all of which could be constitutionally restructured if the Court adopts the stricter originalist view.

The Unitary Executive Theory and the Removal Power

The removal power remains the central battlefield. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Court struck down dual-layer for-cause protection for members of the accounting board, holding that the President must have sufficient control over executive officers. Chief Justice Roberts’s majority opinion relied heavily on originalist sources, including the Federalist Papers and the 1789 debate. Justice Breyer’s dissent, by contrast, invoked post-New Deal precedent and functionalist reasoning.

More recently, in Seila Law LLC v. Consumer Financial Protection Bureau (2020), the Court extended that logic to invalidate for-cause removal protection for the single director of the CFPB. Chief Justice Roberts again wrote for the majority, declaring that the Constitution gives the President “the exclusive power of removal” over principal executive officers, except for members of multi-member commissions with limited bases for removal. The opinion canvassed founding-era practice, early congressional statutes, and historical understandings of the Take Care Clause. Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, argued that the CFPB’s structure was constitutional and that the majority had misread historical evidence.

These decisions demonstrate that originalism is not merely a theoretical exercise; it directly dictates the degree of control the President can exercise over the bureaucracy. If the Court continues down this path, it could restructure the entire federal government, concentrating more power in the White House—or, paradoxically, limiting the executive’s ability to act through agencies that Congress intended to be independent.

Originalism and Foreign Affairs: An Unsettled Frontier

Originalist analysis of foreign affairs power is especially contested because the Constitution says so little about diplomacy, treaty-making, and the conduct of war. Article II vests the President with the “executive Power” and makes him Commander in Chief, but it does not enumerate a general foreign affairs power. Meanwhile, the Necessary and Proper Clause grants Congress the ability to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Originalists are divided over whether this Clause implies a broad congressional role in foreign affairs or, as Justice Sutherland argued in United States v. Curtiss-Wright Export Corp. (1936), that the President possesses inherent, extra-constitutional powers related to foreign sovereignty.

Sutherland’s opinion—which drew on a speech by John Marshall and the concept of “external sovereignty”—has been roundly criticized by modern originalists for fabricating historical support. In Curtiss-Wright, the Court upheld a congressional delegation of power to the President to prohibit arms sales to belligerent countries, but Sutherland went further and suggested that the President’s foreign affairs powers are not limited to those enumerated in the Constitution. Justice Jackson, in his Youngstown concurrence, rejected that notion, calling it “a doctrine of inherent power that would make the presidency a perpetual source of authority.”

How originalists resolve this debate will determine the constitutional legitimacy of treaties like the Iran nuclear deal, executive agreements on climate change, and the use of military force against non-state actors. It also implicates the President’s ability to recognize foreign governments, a power that the Supreme Court recently addressed in Zivotofsky v. Kerry (2015). In that case, Justice Thomas dissented in part and applied originalist reasoning to argue that the President alone possesses the recognition power—a conclusion that the majority also reached, though through a different (non-originalist) path.

Conclusion: Originalism as a Constraint and a Battleground

Originalism has profoundly reshaped the way courts, scholars, and the public think about executive power. It offers a framework that claims to limit judicial discretion and respects the Constitution’s original meaning, thereby constraining both the executive and the judiciary. But as the cases and controversies above demonstrate, originalism does not yield mechanical answers. The same method that Justice Scalia used to argue for a unitary executive can be turned around to demand narrow readings of presidential authority. Its influence lies not in predetermined outcomes, but in the rhetorical and structural weight it gives to text, history, and separation of powers.

The future of originalism in executive-power cases will depend on the steady accumulation of scholarly and judicial work that refines the method and applies it to new questions. As Justice Kagan observed in her Seila Law dissent, “a technological society cannot apply the simple remedies of the 18th and 19th centuries to the problems of 21st-century governance.” Originalists reply that the principles of 1787 remain sound, even if their application evolves. For better or worse, originalism is now deeply embedded in American constitutional law. Its impact on the presidency—and on the balance of power among the branches—will continue to be one of the most consequential legal debates of our time.