Document Type
Working Paper
Publication Date
12-2025
Language
en-US
Abstract
As a matter of original public meaning, Article I’s Necessary and Proper clause is the starting point for both Congress’s power to create offices and the limits on that power.
We believe that many legal scholars have demonstrated that, as a matter of original public meaning, the term “executive power” did not imply a presidential removal power, and Article II did not imply an indefeasible (unconditional) presidential removal power. By contrast, Article I’s Necessary and Proper Clause is a basis for limiting congressional power that is more historically grounded in original public meaning and in early practice. Tenure protections and agency structures must be necessary and proper for executing federal power, meaning that they must be suitable means for pursuing proper ends. The debates and statutes in the First Congress reflect an analysis of means and ends in creating a small number of fully independent and mixed independent offices for specific complex tasks, often related to public debt and the public fisc.
The original public meaning of the Take Care clause does not support an indefeasible presidential removal power, but it provides a similar principle for distinguishing between valid and invalid congressional conditions, also consistent with all the removal precedents and with history and tradition. Our interpretation of the Executive Vesting Clause does not rely on the Empty Vessel hypothesis, and it is consistent with the Bundle of Powers hypothesis. One can have a non-empty-vessel conception of the Article II Vesting Clause – and even believe that the vessel includes a presumptive removal power – and still conclude that Congress has some authority to overcome that presumption by statute.
These interpretations of Article I and Article II also offer a more originalist, balanced approach to the separation of powers. With complex questions about the Federal Reserve looming, a stretching of Article II would lead to a series of judicial problems and interventions. The Necessary and Proper Clause is a stronger originalist basis to replace Humphrey’s Executor, to limit congressional power, and to confirm narrow traditional exceptions for the FTC and the Federal Reserve.
Recommended Citation
Gary Lawson & Jed H. Shugerman,
Presidential Removal as Article I, Not Article II
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4168
