A Necessary and Proper Answer to the All-or-Nothing Removal Debate
Document Type
Blog Post
Publication Date
12-3-2025
Language
en-US
Abstract
We sincerely appreciated Richard Re’s balanced reading of the historical debate over a presidential removal power and independent agencies (“Does History Defeat Removal Doctrine?”). He raises a series of important questions about what appears to be an all-or-nothing polarized debate. We hope we can address some of those questions with new historical analysis and a balanced originalist path forward.
With Trump v. Slaughter scheduled for oral arguments on Monday, Dec. 8th, Re’s essay is worth re-reading in its entirety. He rightly concluded: “It would be unfortunate if the Court embraced an absolute removal power based on a mistaken belief that the only historically available alternative is no removal power at all.” He wisely added: “Because ambiguous history invites a wider array of considerations, it can also create common ground and nuance.”
With that invitation in mind, we thought we would share our recent essay “Presidential Removal as Article I, Not Article II.” It offers common ground and a balanced originalist answer recognizing that a congressional power and meaningful limits on that power come from the same clause: Article I’s Necessary and Proper Clause.
Recommended Citation
Jed H. Shugerman & Gary Lawson,
A Necessary and Proper Answer to the All-or-Nothing Removal Debate
,
Divided Argument
(2025).
Available at:
https://scholarship.law.bu.edu/shorter_works/264
Publisher URL
https://blog.dividedargument.com/p/guest-post-a-necessary-and-proper
