The Supreme Court’s recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This Essay offers the first account of the historical mismatch between the Trump Court’s decision to immunize presidential removal power and Founding era conceptions of the presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President’s “unrestricted power of removal” can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal to effectuate blatantly unlawful ends. The Court’s approach creates a far more powerful presidency than was ever recognized by the Founding generation. The text of Article II authorizes the President “to execute” the law—not violate it—and it requires Presidents to “take care” that the law be faithfully executed. The Court’s decision to immunize removal also conflicts with Founding era understandings and early laws in which Congress restricted the President’s removal power.
Christine Kexel Chabot (Wed,) studied this question.