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The Founders’ Purse

This Article addresses a grave originalist misstep in the new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the U.S. Court of Appeals for the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau. It supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, Section 9’s Appropriations Clause. Once the U.S. Supreme Court had the benefit of a more complete historical record, it rejected the Fifth Circuit’s interpretation of the Appropriations Clause’s original public meaning by a 7-2 vote. This Article grounds the Supreme Court’s analysis in a broader historical background on the delegation of spending power. It also illustrates how judges’ selective analysis of history can distort the Founding generation’s understanding of separation of powers and the respective roles of the legislative and executive branches.

Originalist claims to constitutional limits on the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for temporal limitations on Congress’s revenue and spending powers. Second, early Congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit while paying down the debt, the First Congress delegated to an agency known as the Sinking Fund Commission indefinite power to self-direct purchases of debt with a generous award that, in current terms, exceeds $400 billion. Within two years, the debt instruments purchased by the Commission generated a significant interest-based surplus, which Congress awarded to the Commission in a dedicated fund drawn outside of annual appropriations. To establish an affordable new federal government, early Congresses also funded a majority of federal officers, including core law enforcement officials and even a new agency, through independently directed fees that were paid by private parties and operated without temporal limits. This history shows that Article I, Section 9 means what it says and requires only that Congress authorize spending through “[a]ppropriations made by [l]aw.” Claims to a contrary understanding depend on a selective analysis that ignores key lessons of both text and history.

Introduction

It’s all the rage for courts to question the constitutionality of statutes that delegate broad discretion to the executive branch. In May 2024, the Supreme Court ruled on the nondelegation doctrine’s latest twist and rejected the U.S. Court of Appeals for the Fifth Circuit’s holding that Congress unconstitutionally ceded its power of the purse to the Consumer Financial Protection Bureau (“Bureau”). Congress met the letter of the Appropriations Clause when it “ascertained” the “purpose,” the “limit,” and the source of the “fund” supporting the Bureau’s budget “by . . . law.”1 1.As explained by Alexander Hamilton, laws containing these minimal parameters meet Article I, Section 9’s requirement of “appropriations made by law.” Alexander Hamilton, Explanation (Nov. 11, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/‌documents/Hamilton/01-19-02-0077 [https://perma.cc/FF4D-TR3E] (quoting U.S. Const. art. I, § 9).Show More The Fifth Circuit held that this law did not count as an “appropriation,” however, because (1) it allowed the Bureau broad discretion to self-direct the amount of its budget for an unlimited period of time, and (2) the Bureau drew its funds from an independent source (interest-based earnings of the Federal Reserve System) rather than annual appropriations from the Treasury.2 2.See Cmty. Fin. Servs. Ass’n of Am. v. CFPB, 51 F.4th 616, 638–39 (5th Cir. 2022), rev’d, 144 S. Ct. 1474 (2024); see also id. at 623 (Congress’s decision “to cede its power of the purse to the Bureau[] violates the Constitution’s structural separation of powers.”).Show More This Article introduces previously overlooked evidence to challenge the originalist underpinnings of the Fifth Circuit’s opinion. It establishes that the Founding generation never understood the Appropriations Clause to impose heightened requirements as to the duration, specificity, and source of spending in laws passed by Congress.

Once the Supreme Court had the benefit of a more complete historical record, seven Justices rejected the Fifth Circuit’s originalist analysis.3 3.CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474, 1481 (2024) (rejecting the Fifth Circuit’s argument “that appropriations must also ‘meet the Framers’ salutary aims of separating and checking powers’” (quoting Cmty. Fin. Servs. Ass’n, 51 F.4th at 640)).Show More Justice Thomas’s majority opinion emphasized parts of the historical record that the Fifth Circuit missed and concluded that the Fifth Circuit misconstrued the original public meaning of the Appropriations Clause.4 4.Id. (finding that “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification” supported a more limited understanding of the Appropriations Clause).Show More While the majority left open the possibility of “other constitutional checks on Congress’s authority to create and fund an administrative agency,”5 5.Id. at 1489.Show More it gave little indication of how courts should avoid repeating the Fifth Circuit’s originalist missteps in future cases. This Article grounds the Supreme Court’s analysis in a broader historical record and illustrates how judges’ selective use of historical evidence can distort the Founding generation’s understanding of separation of powers.

The constitutional objections raised by critics of the Bureau’s funding structure boil down to a nondelegation concern: Congress unconstitutionally delegated its legislative power over spending when it granted broad budgetary discretion to the Bureau.6 6.Adam White, The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse, Yale J. on Regul.: Notice & Comment (Nov. 27, 2022), https://www.yalejreg.com/nc/the-cfpb‌s-blank-check-or-delegating-congresss-power-of-the-purse/ [https://perma.cc/GR8S-JDVS] (“The point could be put even more bluntly than the Fifth Circuit did: Congress delegated away its power of the purse.”). The Fifth Circuit held that Community Financial Services waived the nondelegation argument because they “did not raise their appropriations-based nondelegation argument in the district court.” Cmty. Fin. Servs. Ass’n, 51 F.4th at 633 n.6. Community Financial Services nevertheless asserted that “nondelegation principles are directly responsive” to arguments in this case, Brief in Opposition at 33, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448), and raised nondelegation arguments in its merits briefs. See infra notes 7–8.Show More These critics have disagreed over whether the purported constitutional limitations on the delegation of spending power stem from the Appropriations Clause or Article I, Section 1 of the Constitution.7 7.Brief for Respondents at 16, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (arguing that the Bureau’s funding “structure nullifies the [Appropriations] Clause”); id. at 27–29 (arguing that the Bureau’s funding scheme amounts to an unconstitutional “delegation of legislative power[s]” (quoting Mistretta v. United States, 488 U.S. 361, 420 (1989) (Scalia, J., dissenting))); cf. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 318 (2001) (arguing that the “the question of whether the nondelegation doctrine applies to appropriation laws turns on two different constitutional clauses”: the Appropriations Clause and, under the assumption that discretion over spending is an executive and not a legislative power, the Executive Power Vesting Clause); Chad Squitieri, The Appropriate Appropriations Inquiry, 74 Fla. L. Rev. F. 1, 17–18 (2023) (arguing that courts should focus on whether spending powers amount to a “necessary and proper” means of carrying some other constitutionally vested power “into execution” (quoting U.S. Const. art. I, § 8)). The Founding generation conceived of purported limits on delegation of spending power under either the generally applicable Appropriations Clause or the two-year Army Appropriations Clause, rather than under a necessary and proper framework. See infra notes 312–13 and accompanying text (citing Madison’s understanding from a debate in the First Congress). The necessary and proper line of analysis is therefore beyond the scope of this Article.Show More The different sources of constitutional limitations also implicate somewhat different lines of analysis. Some arguments assert limits on the duration, generality, and source of funding under the Appropriations Clause, whereas others look to a general nondelegation framework based on the “intelligible principle” test.8 8.Cmty. Fin. Servs. Ass’n, 51 F.4th at 623 (holding that the Bureau’s funding law was not a constitutional “appropriation[]” because it omitted these limits); Brief for Respondents, supra note 7, at 15–16 (arguing that the Bureau’s spending structure violates the Appropriations Clause because it grants self-determined, “perpetual” funding to an agency with law enforcement power); id. at 29 (arguing that the funding law also “falls short” under the “intelligible principle test” (internal quotation marks omitted) (quoting Mistretta, 488 U.S. at 372)).Show More But in the end, all of these arguments point to constraints on Congress’s discretion to delegate decisions about funding to the executive branch. These purported limits have raised further questions about the constitutionality of similarly funded financial regulators such as the Federal Reserve. In addition, they have formed the basis of broader challenges to major spending initiatives ranging from the Biden Administration’s forgiveness of student loans to the Federal Communications Commission’s funding of universal service.9 9.Brief of Michael W. McConnell et al. as Amici Curiae in Support of Respondents at 7, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (No. 22-506) (arguing that the loan forgiveness program violates the Appropriations Clause’s requirement that “the President may not spend without specific statutory authorization”); id. at 6 (“Forgiving a loan . . . come[s] under Congress’s exclusive spending power.”). In Biden v. Nebraska, the Court suggested that the major questions doctrine’s related clear-statement requirement extended to laws authorizing executive spending. 143 S. Ct. at 2375 (“It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.”); cf. Consumers’ Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917, 923–24 (11th Cir. 2023) (rejecting nondelegation argument that “there is no limit on how much the FCC can raise” to fund universal service and identifying intelligible principles that limit the agency’s funding authority), cert. denied, No. 23-743, 2024 WL 2883755 (U.S. June 10, 2024); Christina Parajon Skinner, The Monetary Executive, 91 Geo. Wash. L. Rev. 164, 192–216 (2023) (examining how a shift in “monetary and fiscal powers” from Congress and “to the President” will “likely” degrade “the quality of our modern monetary policymaking . . . and fiscal discipline”).Show More In light of these developments, it seems that the originalist case for a more rigorous nondelegation doctrine has been extended to limits on Congress’s power to delegate broad discretion over spending to the executive branch.

This Article introduces crucial historical context that originalist proponents of limits on Congress’s power to structure funding laws have missed: understandings of strong and durable revenue and spending powers that prevailed before, during, and after ratification of the U.S. Constitution. Arguments raised by nondelegation advocates rest on general historical understandings of Congress’s power of the purse and assumptions that the U.S. Constitution incorporated earlier English practices of passing specific and temporally limited spending laws.10 10.See CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–32 (5th Cir. 2022).Show More This Article shows that the Constitution’s revenue and spending provisions instead emerged from a period in which America broke with English practice: Congress’s revenue and spending powers were forged on the heels of a war opposing taxation without representation and in subsequent response to the Confederation Congress’s lack of direct revenue power.11 11.Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 20 (1997) (arguing that the “imperial controversy” that “ended with the Declaration of Independence” revealed “striking differences” between “political practices and attitudes” in England and America).Show More The general debate over new revenue and spending powers in the Constitution balanced the need for durable congressional powers to sustain the United States government and credit against concerns about federalism and the dangers of combining the powers of the sword and the purse.12 12.See infra Section II.A.Show More

My broader examination of historical context reveals two main areas in which the Framers rejected the limitations asserted by critics of the Bureau’s funding structure. First, with respect to temporal limits on spending, delegates at the Constitutional Convention considered and declined to add an amendment that would have banned perpetual revenue laws. The concerns underlying perpetual revenue implicated broader issues of unchecked military spending and combining the powers of the “sword and the purse” in either the executive or legislative branch.13 13.Id.Show More Instead of including general limits on the duration of revenue laws, the Framers imposed limits on appropriations and applied these limits only to money appropriated in support of an army.14 14.Id.Show More The initial opposition to perpetual revenue laws never amounted to a key objection during ratification debates, even though Antifederalists vigorously opposed other aspects of Congress’s revenue power, such as its ability to levy direct taxes.15 15.Id.Show More During debates over revenue and spending powers in the First Congress, James Madison confirmed the lack of any general temporal limit for the Appropriations Clause when he dismissed a colleague’s patently erroneous suggestion that the Appropriations Clause imposed a general two-year limitation on spending.16 16.Id.Show More The Constitution’s revenue and spending provisions ultimately allowed Congress to create a new government with staying power: it could enact durable mechanisms for the United States to collect revenue, pay the debt, support U.S. credit, and enforce its laws.

Second, early Congresses repeatedly used the Constitution’s new and durable spending powers to bypass the asserted constitutional limits on duration, generality, and source of spending. Early legislation granted an agency known as the Sinking Fund Commission a self-directed and ultimately dedicated fund.17 17.See infra Section II.B.Show More The initial 1790 law authorized a generous fund that supported executive purchases of debt instruments for many years into the future18 18.See infra Section II.B.Show More and in today’s terms would exceed $400 billion.19 19.See infra note 329.Show More Within two years, debt instruments purchased with the initial sinking fund award generated surplus interest which Congress allocated to a dedicated fund for the executive branch to apply to repayment of debt.20 20.Id.Show More Like funds allocated to the Bureau and Federal Reserve, funds drawn from a stream of interest on government-controlled debt instruments funded the executive through captive revenue generated outside of annual appropriations.21 21.Id.Show More This fund allowed the Commission to support U.S. credit by self-directing discretionary open market purchases of U.S. securities and eventually redeeming outstanding debt instruments. The commitment of funds to the Commission was a key feature of the Sinking Fund legislation and was recognized by Secretary Hamilton as “a permanent sinking fund.”22 22.Alexander Hamilton, Report on a Plan for the Further Support of Public Credit (Jan. 16, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Hamilton/‌01-18-02-0052-0002 [https://perma.cc/5FXG-YC4K].Show More

Originalist critics of the Bureau’s funding have also missed how Congress used durable new revenue and spending powers to fund a majority of federal officers and sometimes even new agencies outside of annual appropriations. Early Congresses routinely funded government officials through independently directed fees that operated without temporal limits. Well-known examples of fee-based funding for customs officials23 23.Brief of Professors of History and Constitutional Law as Amici Curiae in Support of Petitioners at 22–27, CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474 (2024) (No. 22-448) [hereinafter Amici Brief] (describing initial laws that created fee-based funding for the customs service and independently determined funding for revenue and postal officials); Brief for Petitioners at 22, Cmty. Fin. Servs.Ass’n, 144 S. Ct. 1474 (No. 22-448) (noting early laws providing non-appropriations-based funding for the Post Office and Mint).Show More reflect pervasive funding practices in the Founding Era. These early fee-based compensation schemes applied to scores of field officers who comprised “[b]y far the larger number of federal officials” funded by Congress.24 24.Leonard D. White, The Federalists: A Study in Administrative History 298 (1948).Show More These officials included U.S. District Attorneys and U.S. marshals charged with significant federal law enforcement duties, and Congress even used fee-based compensation to fund an entirely new agency in the first Patent Board.25 25.Leading surveys of fee-based compensation include id.; Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940, at 262–77 (2013); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1302, 1313–15 (2006).Show More These early statutes departed from purported nondelegation requirements that funding statutes be limited in duration, specificity, and source. Instead, they authorized standing, fee-based funding, often relied on fees collected from private parties rather than appropriations drawn from the Treasury, and allowed federal officers such as customs collectors and U.S. District Attorneys to self-determine their funding levels by pursuing varying levels of fee-producing enforcement activities.26 26.See infra Section II.C.Show More In other cases, the total amount of fees was determined not by Congress but instead by private parties’ usage of customs and patent services over which the United States held a regulatory monopoly.

While earlier works have noted how proposals for bans on perpetual revenue laws failed at the Constitutional Convention27 27.Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207, 1254 n.381 (2009) (explaining that George Mason’s proposal for a “clause . . . restraining perpetual revenue” “never made it into the Constitution” (quoting 2 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1911) [hereinafter 2 Farrand’s Records] (James Madison’s Notes, Aug. 18, 1787)); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 148 (2016) (noting that the Framers failed to incorporate George Mason’s objection to “perpetual revenue” laws).Show More as well as the Sinking Fund Commission’s role in supporting U.S. credit,28 28.Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 1 (2020) [hereinafter Chabot, Is the Federal Reserve Constitutional?] (introducing the Commission and its independent structure); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 128–36 (2021) [hereinafter Chabot, Lost History] (explaining that Congress granted the Commission broad discretion over open market purchases).Show More this Article is the first to analyze how these early understandings of spending power contradict recent arguments for heightened nondelegation requirements under the Appropriations Clause. This Article also builds on earlier discussions of fee-based compensation for customs officials29 29.See supra note 23.Show More to show that early Congresses awarded indefinite and independently determined fee-based funding regularly and for core law enforcement officials.

Arguments for an appropriations-based nondelegation doctrine also fall outside of the general literature on Congress’s power of the purse and nondelegation for three reasons. First, the arguments for a nondelegation doctrine under the Appropriations Clause ignore scholarly consensus that Congress has broad power to delegate public matters including spending authority.30 30.See infra notes 106–07 and accompanying text (proponents and opponents of a more rigorous nondelegation doctrine agree that this doctrine does not apply to public matters such as spending). Works noting the generality of early spending laws include Lucius Wilmerding, Jr., The Spending Power: A History of the Efforts of Congress to Control Expenditures 20–21 (1943); Gerhard Casper, Appropriations of Power, 13 U. Ark. Little Rock L.J. 1, 10–13 (1990); Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 58 (2017).Show More Second, nondelegation arguments depart from literature showing that violations of the Appropriations Clause have generally arisen when presidents attempt to exert unilateral spending authority without approval from Congress.31 31.See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1078 (2021) (noting Obama’s and Trump’s “creative use of appropriations” to “push . . . policy priorities”); Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 360 (2018) (noting how the “executive branch, in both Republican and Democratic administrations,” has “routinely disregard[ed] funding limits”); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1344 (1988); (claiming “[t]he covert program of support for the Contras evaded the Constitution’s most significant check on Executive power”—appropriations); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke L.J. 1162, 1168 (challenging the interpretation of the Appropriations Clause adopted in the Iran-Contra Report).Show More Third, attempts to establish a new Appropriations Clause violation depend on misapplications of originalist analysis rather than objectively verifiable constitutional limits grounded in text and history. Critics of the Bureau’s funding structure have erred by omitting weighty historical counterevidence and placing undue emphasis on the absence of a precise historical analogue.

This Article addresses originalist claims to limits on the duration, generality, and source of spending laws as follows. In Part I, it contrasts the Bureau’s statutory funding mechanisms and the Fifth Circuit’s analysis with general literature on nondelegation and Appropriations Clause violations. It explains how misapplications of originalist methodology led the Fifth Circuit and even some Supreme Court Justices to exclude significant counterevidence weighing in favor of the Bureau’s constitutionality. Part II grounds the Supreme Court’s opinion in key historical context that critics of the Bureau’s funding structure have missed. Both records of the Constitutional Convention and a large body of early spending laws cut against arguments that the Appropriations Clause imposed nondelegation requirements. This Article concludes that the Founding generation never understood the Appropriations Clause to impose rigorous nondelegation requirements as to the duration, specificity, and source of spending in laws passed by Congress. Critics of the Bureau’s funding structure have relied on a flawed analysis that distorts the Founding generation’s understandings of separation of powers and fails to realize the constraints central to originalism.

  1.  As explained by Alexander Hamilton, laws containing these minimal parameters meet Article I, Section 9’s requirement of “appropriations made by law.” Alexander Hamilton, Explanation (Nov. 11, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/‌documents/Hamilton/01-19-02-0077 [https://perma.cc/FF4D-TR3E] (quoting U.S. Const. art. I, § 9). ↑
  2.  See Cmty. Fin. Servs. Ass’n of Am. v. CFPB, 51 F.4th 616, 638–39 (5th Cir. 2022), rev’d, 144 S. Ct. 1474 (2024); see also id. at 623 (Congress’s decision “to cede its power of the purse to the Bureau[] violates the Constitution’s structural separation of powers.”). ↑
  3.  CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474, 1481 (2024) (rejecting the Fifth Circuit’s argument “that appropriations must also ‘meet the Framers’ salutary aims of separating and checking powers’” (quoting Cmty. Fin. Servs. Ass’n, 51 F.4th at 640)). ↑
  4.  Id. (finding that “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification” supported a more limited understanding of the Appropriations Clause). ↑
  5.  Id. at 1489. ↑
  6.  Adam White, The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse, Yale J. on Regul.: Notice & Comment (Nov. 27, 2022), https://www.yalejreg.com/nc/the-cfpb‌s-blank-check-or-delegating-congresss-power-of-the-purse/ [https://perma.cc/GR8S-JDVS] (“The point could be put even more bluntly than the Fifth Circuit did: Congress delegated away its power of the purse.”). The Fifth Circuit held that Community Financial Services waived the nondelegation argument because they “did not raise their appropriations-based nondelegation argument in the district court.” Cmty. Fin. Servs. Ass’n, 51 F.4th at 633 n.6. Community Financial Services nevertheless asserted that “nondelegation principles are directly responsive” to arguments in this case, Brief in Opposition at 33, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448), and raised nondelegation arguments in its merits briefs. See infra notes 7–8. ↑
  7.  Brief for Respondents at 16, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (arguing that the Bureau’s funding “structure nullifies the [Appropriations] Clause”); id. at 27–29 (arguing that the Bureau’s funding scheme amounts to an unconstitutional “delegation of legislative power[s]” (quoting Mistretta v. United States, 488 U.S. 361, 420 (1989) (Scalia, J., dissenting))); cf. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 318 (2001) (arguing that the “the question of whether the nondelegation doctrine applies to appropriation laws turns on two different constitutional clauses”: the Appropriations Clause and, under the assumption that discretion over spending is an executive and not a legislative power, the Executive Power Vesting Clause); Chad Squitieri, The Appropriate Appropriations Inquiry, 74 Fla. L. Rev. F. 1, 17–18 (2023) (arguing that courts should focus on whether spending powers amount to a “necessary and proper” means of carrying some other constitutionally vested power “into execution” (quoting U.S. Const. art. I, § 8)). The Founding generation conceived of purported limits on delegation of spending power under either the generally applicable Appropriations Clause or the two-year Army Appropriations Clause, rather than under a necessary and proper framework. See infra notes 312–13 and accompanying text (citing Madison’s understanding from a debate in the First Congress). The necessary and proper line of analysis is therefore beyond the scope of this Article. ↑
  8.  Cmty. Fin. Servs. Ass’n, 51 F.4th at 623 (holding that the Bureau’s funding law was not a constitutional “appropriation[]” because it omitted these limits); Brief for Respondents, supra note 7, at 15–16 (arguing that the Bureau’s spending structure violates the Appropriations Clause because it grants self-determined, “perpetual” funding to an agency with law enforcement power); id. at 29 (arguing that the funding law also “falls short” under the “intelligible principle test” (internal quotation marks omitted) (quoting Mistretta, 488 U.S. at 372)). ↑
  9.  Brief of Michael W. McConnell et al. as Amici Curiae in Support of Respondents at 7, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (No. 22-506) (arguing that the loan forgiveness program violates the Appropriations Clause’s requirement that “the President may not spend without specific statutory authorization”); id. at 6 (“Forgiving a loan . . . come[s] under Congress’s exclusive spending power.”). In Biden v. Nebraska, the Court suggested that the major questions doctrine’s related clear-statement requirement extended to laws authorizing executive spending. 143 S. Ct. at 2375 (“It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.”); cf. Consumers’ Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917, 923–24 (11th Cir. 2023) (rejecting nondelegation argument that “there is no limit on how much the FCC can raise” to fund universal service and identifying intelligible principles that limit the agency’s funding authority), cert. denied, No. 23-743, 2024 WL 2883755 (U.S. June 10, 2024); Christina Parajon Skinner, The Monetary Executive, 91 Geo. Wash. L. Rev. 164, 192–216 (2023) (examining how a shift in “monetary and fiscal powers” from Congress and “to the President” will “likely” degrade “the quality of our modern monetary policymaking . . . and fiscal discipline”). ↑
  10.  See CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–32 (5th Cir. 2022). ↑
  11.  Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 20 (1997) (arguing that the “imperial controversy” that “ended with the Declaration of Independence” revealed “striking differences” between “political practices and attitudes” in England and America). ↑
  12.  See infra Section II.A. ↑
  13.  Id. ↑
  14.  Id. ↑
  15.  Id. ↑
  16.  Id. ↑
  17.  See infra Section II.B. ↑
  18.  See infra Section II.B. ↑
  19.  See infra note 329. ↑
  20.  Id. ↑
  21.  Id. ↑
  22.  Alexander Hamilton, Report on a Plan for the Further Support of Public Credit (Jan. 16, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Hamilton/‌01-18-02-0052-0002 [https://perma.cc/5FXG-YC4K]. ↑
  23.  Brief of Professors of History and Constitutional Law as Amici Curiae in Support of Petitioners at 22–27, CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474 (2024) (No. 22-448) [hereinafter Amici Brief] (describing initial laws that created fee-based funding for the customs service and independently determined funding for revenue and postal officials); Brief for Petitioners at 22, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (noting early laws providing non-appropriations-based funding for the Post Office and Mint). ↑
  24.  Leonard D. White, The Federalists: A Study in Administrative History 298 (1948). ↑
  25.  Leading surveys of fee-based compensation include id.; Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940, at 262–77 (2013); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1302, 1313–15 (2006). ↑
  26.  See infra Section II.C. ↑
  27.  Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207, 1254 n.381 (2009) (explaining that George Mason’s proposal for a “clause . . . restraining perpetual revenue” “never made it into the Constitution” (quoting 2 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1911) [hereinafter 2 Farrand’s Records] (James Madison’s Notes, Aug. 18, 1787)); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 148 (2016) (noting that the Framers failed to incorporate George Mason’s objection to “perpetual revenue” laws). ↑
  28.  Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 1 (2020) [hereinafter Chabot, Is the Federal Reserve Constitutional?] (introducing the Commission and its independent structure); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 128–36 (2021) [hereinafter Chabot, Lost History] (explaining that Congress granted the Commission broad discretion over open market purchases). ↑
  29.  See supra note 23. ↑
  30.  See infra notes 106–07 and accompanying text (proponents and opponents of a more rigorous nondelegation doctrine agree that this doctrine does not apply to public matters such as spending). Works noting the generality of early spending laws include Lucius Wilmerding, Jr., The Spending Power: A History of the Efforts of Congress to Control Expenditures 20–21 (1943); Gerhard Casper, Appropriations of Power,
    13

    U. Ark. Little Rock L.J.

    1, 10–13 (1990

    ); Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers

    58 (2017).

    ↑

  31.  See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1078 (2021) (noting Obama’s and Trump’s “creative use of appropriations” to “push . . . policy priorities”); Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 360 (2018) (noting how the “executive branch, in both Republican and Democratic administrations,” has “routinely disregard[ed] funding limits”); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1344 (1988); (claiming “[t]he covert program of support for the Contras evaded the Constitution’s most significant check on Executive power”—appropriations); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke

    L.J.

    1162, 1168 (challenging the interpretation of the Appropriations Clause adopted in the Iran-Contra Report). ↑

Consent and Compensation: Resolving Generative AI’s Copyright Crisis

Generative artificial intelligence (AI) has the potential to augment and democratize creativity. However, it is undermining the knowledge ecosystem that now sustains it. Generative AI may unfairly compete with authors, journalists, and other creative workers, displacing them in the market. Most AI firms are not compensating creative workers for composing the songs, drawing the images, and writing both the fiction and nonfiction books that their models need in order to function. AI thus threatens not only to undermine the livelihoods of authors, artists, and other creatives, but also to destabilize the very knowledge ecosystem it relies on.

Alarmed by these developments, many copyright owners have objected to the use of their works by AI providers. In order to recognize and empower their demands to stop nonconsensual use of their works, we propose a streamlined opt-out mechanism that would require AI providers to remove objectors’ works from their databases once copyright infringement has been documented. Those who do not object still deserve compensation for the use of their work by AI providers. We thus also propose a levy on AI providers, to be distributed to the copyright owners whose work they use without a license. This scheme is designed to ensure that creatives receive a fair share of the economic bounty arising out of their contributions to AI. Together, these mechanisms of consent and compensation would result in a new grand bargain between copyright owners and AI firms, helping to ensure the long-term viability of both AI and the human thought and expression it depends on.

Introduction

From the printing press to the Internet, technological advance has profoundly changed the way authors create, disseminate, and monetize their works.1 1.See generally Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates(2009) (discussing the history of copyright piracy).Show More Widespread access to the Internet has caused book, music, and film creators great economic setbacks via piracy, but has also created new opportunities, particularly for “long tail” creators shunned by dominant recording companies and broadcasters.2 2.See Chris Anderson, The Long Tail, Wired (Oct. 1, 2004, 12:00 PM), https://www.wired.‌com/2004/10/tail [https://perma.cc/P9QQ-MPTG].Show More Despite the upheaval, human authors have remained indispensable in the creation of works, as pirates do not create original content.

The rise of generative artificial intelligence (AI), however, represents an inflection point.3 3.Generative AI’s power to create exact replicas of existing works, and to imitate many characteristic elements of existing works, has provoked a wave of lawsuits over the past two years. However, copyright controversies over the training of AI antedate the rise of generative AI. To mark the relevance of that past work, and the continuity of the problems likely to be raised by AI when the next generation of AI arises, we refer to “AI” throughout the Essay, rather than the more cumbersome “generative AI” or “GenAI.”Show More AI can plagiarize at a far faster rate than human copyists.4 4.Kate Knibbs, Scammy AI-Generated Book Rewrites Are Flooding Amazon, Wired (Jan. 10, 2024, 7:00 AM), https://www.wired.com/story/scammy-ai-generated-books-flooding-am‌azon/ [https://perma.cc/4R7G-LXFU].Show More These capacities are menacing both fiction and nonfiction book authors, as well as journalists.5 5.Our focus in this Essay is on corporations developing, marketing, and selling AI services. The legislative approaches developed in this Essay may, in a calibrated fashion, adjust duties of AI providers to reflect their size, for-profit or nonprofit status, and other factors.Show More AI can also create new works that closely resemble the style and content of existing ones. When prompted skillfully, large language models (LLMs) aid in the rapid creation of a high volume of content. The bottom line is an “existential crisis” for many creatives, threatening to drive the marginal value of their labor below subsistence levels as cheap AI content displaces human works.6 6.See Michael Cavna, Artists Are Alarmed by AI—and They’re Fighting Back, Wash. Post (Feb. 14, 2023, 6:00 AM), https://www.washingtonpost.com/comics/2023/02/14/ai-in-illustra‌tion/ [https://perma.cc/4RFW-5FX3] (describing “an existential threat to the livelihood of artists”). Throughout this Essay, we will refer to artists, writers, journalists, and other creators of expressive works as “creatives” or “copyright owners.” We realize these terms may be too capacious: some expressive work only takes a minimal amount of creativity, and many creatives have transferred their copyrights to others in exchange for compensation. Nevertheless, copyright is premised on some minimal level of creativity, and the future compensation of creatives who plan to alienate their copyrights is at least in part premised on the value of those copyrights to those seeking them. Thus the terms capture enough of social and economic reality to be useful here.Show More

Given the enthusiasm for AI evident among so many owners of dominant content distribution platforms, such a displacement may already be underway.7 7.Edward Zitron, Are We Watching the Internet Die?, Where’s Your Ed At? (Mar. 11, 2024), https://www.wheresyoured.at/are-we-watching-the-internet-die/ [https://perma.cc/PZC5-H9‌FF] (recognizing that because “platforms were built to reward scale and volume far more often than quality,” creatives who use AI enjoy important advantages over those who do not).Show More To create and improve their AI models, large technology firms have undermined authors’ proprietary control over their works by using these works as training data, without consent and often through opaque processes.8 8.See infra Section I.B.Show More At the same time, AI systems like ChatGPT and MidJourney can rapidly generate a wide variety of content, potentially outperforming humans in the marketplace of ideas—particularly when so many of this marketplace’s main organizers such as Alphabet (Google’s parent company), X (formerly Twitter), and Meta (formerly Facebook) are themselves developing AI.9 9.See Thomas H. Davenport & Nitin Mittal, How Generative AI Is Changing Creative Work, Harv. Bus. Rev. (Nov. 14, 2022), https://hbr.org/2022/11/how-generative-ai-is-changing-crea‌tive-work [https://perma.cc/SK98-ZE5T].Show More

To compound these challenges, leading firms in the AI space are unlikely to offer compensation for the vital contributions of copyrighted works to their systems. In 2023, this state of affairs helped lead to an unprecedented 148-day strike by Hollywood screenwriters.10 10.Ben Schwartz, AI and the Hollywood Writers’ Strike, Nation (May 8, 2023), https://www.‌thenation.com/article/economy/ai-and-the-hollywood-writers-strike [https://perma.cc/8TJR-ZBUC]; Jennifer Maas, The Writers Strike Is Over: WGA Votes to Lift Strike Order After 148 Days, Variety (Sept. 26, 2023, 5:07 PM), https://variety.com/2023/tv/news/writers-strike-over-wga-votes-end-work-stoppage-1235735512/ [https://perma.cc/F5P7-QEWF].Show More Book authors are also alarmed. Over 15,000 writers, including prominent novelists such as Dan Brown, Suzanne Collins, and Margaret Atwood, have endorsed an open letter demanding fair compensation, credit, and author consent for the use of their works in AI systems.11 11.Open Letter to Generative AI Leaders, Action Network, https://actionnetwork.org/petitio‌ns/authors-guild-open-letter-to-generative-ai-leaders [https://perma.cc/8D5W-WGFL] (last visited Mar. 3, 2024).Show More At least one former executive in an AI firm has resigned his position, considering the unlicensed use of music as training data both ethically and legally untenable.12 12.Kate Knibbs, This Tech Exec Quit His Job to Fight Generative AI’s Original Sin, Wired (Jan. 17, 2024, 4:44 PM), https://www.wired.com/story/ai-executive-ed-newton-rex-turns-cru‌sader-stand-up-for-artists [https://perma.cc/97NE-H4Y7].Show More This struggle has resulted in numerous courtroom battles over copyright infringement, too.13 13.Complaint at 2–3, Basbanes v. Microsoft Corp., No. 24-cv-00084 (S.D.N.Y. Jan. 5, 2024); Complaint at 2–4, N.Y. Times Co. v. Microsoft Corp., No. 23-cv-11195 (S.D.N.Y. Dec. 27, 2023); Generative AI-Intellectual Property Cases and Policy Tracker, Mishcon de Reya LLP, https://www.mishcon.com/generative-ai-intellectual-property-cases-and-policy-tr‌acker [https://perma.cc/7RHU-3PG2] (last visited Mar. 3, 2024).Show More AI firms claim that they are protected by the fair use defense,14 14.Mark A. Lemley & Bryan Casey, Fair Learning, 99 Tex. L. Rev. 743, 748 (2021) (arguing that “a [machine learning] system’s use of the data often is transformative as that term has come to be understood in copyright law, because even though it doesn’t change the underlying work, it changes the purpose for which the work is used”).Show More but application of the doctrine is notoriously uncertain, particularly with respect to new technologies.15 15.Katherine Lee, A. Feder Cooper & James Grimmelmann, Talkin’ ‘Bout AI Generation: Copyright and the Generative-AI Supply Chain, 71 J. Copyright Soc’y (forthcoming 2024) (manuscript at 105), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4523551 [https://pe‌rma.cc/Z3C7-PJWJ] (“[F]air use is famously case-specific, so no ex ante analysis can anticipate all of the relevant issues.”).Show More

This litigation may drag on for years, slowing the development of AI while denying or delaying fair compensation to creatives. The situation strikes many policymakers as deeply unfair and undesirable. As the Communications and Digital Committee of the United Kingdom’s House of Lords has concluded, “[w]e do not believe it is fair for tech firms to use rightsholder data for commercial purposes without permission or compensation, and to gain vast financial rewards in the process.”16 16.Commc’ns & Digit. Comm., Large Language Models and Generative AI, 2023-24, HL 54, ¶ 245 (UK).Show More A legislative solution is desirable, and there is a venerable tradition of actual and proposed solutions to the copyright problems created by new technological uses of works.17 17.See William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment 1–22 (2004).Show More

To guide policymakers, this Essay outlines a promising framework for a legislative solution premised on coupling mechanisms of control (via opt-out rights) and compensation (via a levy to be imposed on AI providers by a central authority and then distributed to owners of works used by those AI providers without a license). These mechanisms could first be imposed on the largest AI providers and then expanded as appropriate once standardized. Part I explains the urgency of this proposal by demonstrating that free expropriation of copyrighted works by AI providers not only devalues human creativity, but also threatens to undermine AI itself by eliminating critical incentives for the ongoing creation of works necessary for further technological development. Part II outlines an opt-out mechanism, permitting creatives to forbid nonconsensual use of their works for training AI models after documenting copyright infringement. Part III addresses the proper level of levies necessary to compensate those who do not choose to opt out or license their works to AI providers. Part IV anticipates and responds to objections to our proposal. This Essay concludes by reflecting on the broader policy implications of our proposal.

  1.  See generally Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates

    (2009) (discussing the history of copyright piracy). ↑

  2.  See Chris Anderson, The Long Tail, Wired (Oct. 1, 2004, 12:00 PM), https://www.wired.‌com/2004/10/tail [https://perma.cc/P9QQ-MPTG]. ↑
  3.  Generative AI’s power to create exact replicas of existing works, and to imitate many characteristic elements of existing works, has provoked a wave of lawsuits over the past two years. However, copyright controversies over the training of AI antedate the rise of generative AI. To mark the relevance of that past work, and the continuity of the problems likely to be raised by AI when the next generation of AI arises, we refer to “AI” throughout the Essay, rather than the more cumbersome “generative AI” or “GenAI.” ↑
  4.  Kate Knibbs, Scammy AI-Generated Book Rewrites Are Flooding Amazon, Wired (Jan. 10, 2024, 7:00 AM), https://www.wired.com/story/scammy-ai-generated-books-flooding-am‌azon/ [https://perma.cc/4R7G-LXFU]. ↑
  5.  Our focus in this Essay is on corporations developing, marketing, and selling AI services. The legislative approaches developed in this Essay may, in a calibrated fashion, adjust duties of AI providers to reflect their size, for-profit or nonprofit status, and other factors. ↑
  6.  See Michael Cavna, Artists Are Alarmed by AI—and They’re Fighting Back, Wash. Post
    (

    Feb. 14, 2023, 6:00 AM), https://www.washingtonpost.com/comics/2023/02/14/ai-in-illustra‌tion/ [https://perma.cc/4RFW-5FX3] (describing “an existential threat to the livelihood of artists”). Throughout this Essay, we will refer to artists, writers, journalists, and other creators of expressive works as “creatives” or “copyright owners.” We realize these terms may be too capacious: some expressive work only takes a minimal amount of creativity, and many creatives have transferred their copyrights to others in exchange for compensation. Nevertheless, copyright is premised on some minimal level of creativity, and the future compensation of creatives who plan to alienate their copyrights is at least in part premised on the value of those copyrights to those seeking them. Thus the terms capture enough of social and economic reality to be useful here. ↑

  7.  Edward Zitron, Are We Watching the Internet Die?, Where’s Your Ed At? (Mar. 11, 2024), https://www.wheresyoured.at/are-we-watching-the-internet-die/ [https://perma.cc/PZC5-H9‌FF] (recognizing that because “platforms were built to reward scale and volume far more often than quality,” creatives who use AI enjoy important advantages over those who do not). ↑
  8.  See infra Section I.B. ↑
  9.  See Thomas H. Davenport & Nitin Mittal, How Generative AI Is Changing Creative Work, Harv. Bus. Rev. (Nov. 14, 2022), https://hbr.org/2022/11/how-generative-ai-is-changing-crea‌tive-work [https://perma.cc/SK98-ZE5T]. ↑
  10.  Ben Schwartz, AI and the Hollywood Writers’ Strike, Nation (May 8, 2023), https://www.‌thenation.com/article/economy/ai-and-the-hollywood-writers-strike [https://perma.cc/8TJR-ZBUC]; Jennifer Maas, The Writers Strike Is Over: WGA Votes to Lift Strike Order After 148 Days, Variety (Sept. 26, 2023, 5:07 PM), https://variety.com/2023/tv/news/writers-strike-over-wga-votes-end-work-stoppage-1235735512/ [https://perma.cc/F5P7-QEWF]. ↑
  11.  Open Letter to Generative AI Leaders, Action Network, https://actionnetwork.org/petitio‌ns/authors-guild-open-letter-to-generative-ai-leaders [https://perma.cc/8D5W-WGFL] (last visited Mar. 3, 2024). ↑
  12.  Kate Knibbs, This Tech Exec Quit His Job to Fight Generative AI’s Original Sin, Wired
    (

    Jan. 17, 2024, 4:44 PM), https://www.wired.com/story/ai-executive-ed-newton-rex-turns-cru‌sader-stand-up-for-artists [https://perma.cc/97NE-H4Y7]. ↑

  13.  Complaint at 2–3, Basbanes v. Microsoft Corp., No. 24-cv-00084 (S.D.N.Y. Jan. 5, 2024); Complaint at 2–4, N.Y. Times Co. v. Microsoft Corp., No. 23-cv-11195 (S.D.N.Y. Dec. 27, 2023); Generative AI-Intellectual Property Cases and Policy Tracker, Mishcon de Reya LLP, https://www.mishcon.com/generative-ai-intellectual-property-cases-and-policy-tr‌acker [https://perma.cc/7RHU-3PG2] (last visited Mar. 3, 2024). ↑
  14.  Mark A. Lemley & Bryan Casey, Fair Learning, 99 Tex. L. Rev. 743, 748 (2021) (arguing that “a [machine learning] system’s use of the data often is transformative as that term has come to be understood in copyright law, because even though it doesn’t change the underlying work, it changes the purpose for which the work is used”). ↑
  15.  Katherine Lee, A. Feder Cooper & James Grimmelmann, Talkin’ ‘Bout AI Generation: Copyright and the Generative-AI Supply Chain, 71 J. Copyright Soc’y (forthcoming 2024) (manuscript at 105), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4523551 [https://pe‌rma.cc/Z3C7-PJWJ] (“[F]air use is famously case-specific, so no ex ante analysis can anticipate all of the relevant issues.”). ↑
  16.  Commc’ns & Digit. Comm., Large Language Models and Generative AI, 2023-24, HL 54, ¶ 245 (UK). ↑

  17.  See

    William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment 1–22 (2004). ↑

How to Think About the Removal Power

In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and reply to a critique of, that article. We discuss the meaning of the clause vesting “executive Power” in the President and the clause authorizing Congress to make laws “necessary and proper for carrying into Execution” the powers of the federal government. We contend that the former vests authority to remove in the President and the latter does not allow Congress to treat that allocation of authority as a default. We discuss how constitutional developments in the Commonwealth of Pennsylvania—specifically, a 1784 report authored by the Council of Censors—support our understanding of the federal Constitution’s text and structure. We also discuss early practice under the federal Constitution—specifically, high-profile instances where presidents removed executive subordinates without Senate participation. These sources and episodes, along with those we discussed in our previous article, support the conclusion that the Constitution confers on the President the authority to remove presidentially appointed executive officers.

Introduction

Does the President have a constitutional power to remove executive branch subordinates? In a recent article entitled The Executive Power of Removal,1 1.See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023).Show More we joined the Supreme Court2 2.For recent cases, see Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010); Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020); Collins v. Yellen, 141 S. Ct. 1761 (2021).Show More in defending the proposition that Article II of the Constitution gives the President authority to remove executive officers, at least those who are presidentially appointed.3 3.See Myers v. United States, 272 U.S. 52 (1926). As explained, we did not address those officials performing functions for the territories and the District of Columbia—where Congress might have greater authority to structure administration. See Bamzai & Prakash, supra note 1, at 1802–18. Moreover, we did not dispute that a non-executive institution, like Congress, can initiate “removal” of an executive officer, say, by impeachment. See U.S. Const. art. II, § 4. And we bracketed the question of whether the President has similar removal authority over inferior officers appointed by others. See Bamzai & Prakash, supra note 1, at 1830–35.Show More Without such a power, it is hard to see how the President could exert control—on behalf of an electoral coalition—over the vast American bureaucracy. Without such a power, it is easy to see how a temporary coalition could entrench long-term control over the bureaucracy by creating an officer insulated from presidential control through, for example, the conferral of statutory life tenure with removal only by impeachment. The Constitution’s conferral of removal authority on the President thus has a deep and important connection to the concept that electoral majorities should be able to control the executive branch. In our previous article, we focused on historical sources that had embraced the perspective that the President has just such a power of removal.

In this Essay, we reply to a critique of that article—Removal Rehashed by Professors Andrea Katz and Noah Rosenblum.4 4.See Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023).Show More We part ways with their analysis in several significant respects. But despite our disagreements, we are grateful for the chance to sharpen our own thinking on these issues. Just as the hammer and the anvil forge the metal, so too in the realm of intellectual discovery the critic forces the author to refine arguments that would otherwise remain untested. In that spirit, we offer this reply. We continue to believe that, although our theory is not the only one possible, it best fits text, structure, history, and early practice, and is therefore preferable to the alternatives.

In contrast to our views, Katz and Rosenblum reject altogether the notion that the Constitution confers a removal power on the President.5 5.As best we can tell, Katz and Rosenblum do not concede that the President has a removal authority that Congress can regulate using the Necessary and Proper Clause. Thus, it appears to us that their view departs from the perspective of those, like Justice Kagan, who believe that the President possesses an indefeasible constitutional power to remove close military or diplomatic advisors, because the absence of such power would impede the President’s performance of his constitutional duties. See, e.g., Seila Law, 140 S. Ct. at 2233 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).Show More Starting from that perspective, they advise that readers “will find little new” in our article6 6.Katz & Rosenblum, supra note 4, at 425.Show More—a refrain they repeat so many times and so fixatedly that it takes on the air of a government official advising a passerby to “move on; nothing to see here!”7 7.See id. at 404 (“We are not convinced that the Article says much that is new.”); id. (“[I]t was unclear to us which materials were new or what the new materials added.”); id. at 406 (arguing that “Bamzai and Prakash’s argument is not new”); id. at 416 (claiming that our argument “largely rehashes old arguments with old sources”); id. at 417 (“We are unsure what Bamzai and Prakash believe is new about their argument.”).Show More To be sure, if one starts from the premise, as Katz and Rosenblum do, that it is “intellectually indefensible” to believe that Article II grants a presidential removal authority,8 8.Id. at 405.Show More then we agree: there is nothing to see here. But for those who are more open-minded about one of the most significant (and historically, most debated) questions of the separation of powers, read on.9 9.Of course, feel free to read The Executive Power of Removal too.Show More For as we explain below, Katz and Rosenblum misdescribe several of our arguments and several of the underlying sources. The case for a presidential removal power is stronger than they are willing to acknowledge.

Consider, for example, one of Katz and Rosenblum’s claims about the historical pedigree of the President’s removal authority. They contend that “[t]he historian might wonder why th[e] argument [for an executive power of removal,] if once so widespread, disappeared so quickly.”10 10.Katz & Rosenblum, supra note 4, at 416. Parenthetically, as anyone familiar with history knows, arguments can come and go, such that even if an argument disappeared at some point, it would not necessarily dispose of a claim that the argument existed in, for example, the eighteenth and early nineteenth centuries. At any rate, Katz and Rosenblum’s assertion that our claim “disappeared” is contradicted by the very source that they cite.Show More To support their claim that the argument for a removal power “disappeared so quickly,” Katz and Rosenblum rely on a quotation from a 1916 book by Frank Goodnow providing that courts “have held that [the Vesting Clause] has little if any legal effect, and that for the most part it is to be explained by the powers which are later specifically mentioned.”11 11.Id. at 416 n.94 (quoting Frank J. Goodnow, Principles of Constitutional Government 88–89 (1916)).Show More But Katz and Rosenblum’s use of this quotation does not properly characterize Goodnow. Two pages after the quoted language, Goodnow explained that the “practice” with respect to removal is “that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.”12 12.Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.Frank J. Goodnow, Principles of Constitutional Government 91 (1916). As this language makes clear, Katz and Rosenblum simply misinterpret Goodnow. Even while questioning whether other presidential powers derived from the Vesting Clause, Goodnow plainly acknowledged that the executive power was thought to encompass removal. (We leave to one side the question of whether a 1916 disappearance would count as “quickly” following the Constitution’s adoption.)Show More Rather than demonstrating the “disappearance” of an “executive power of removal,” Goodnow’s 1916 book demonstrates how into the twentieth century, it was widely recognized that Article II conferred removal power on the President.13 13.In a 1905 book, Goodnow foreshadowed the perspective that he explicitly articulated in 1916. See Frank J. Goodnow, The Principles of the Administrative Law of the United States (1905). There, Goodnow described “the interpretation of the constitution made by the first Congress relative to the President’s power of removing officers” as having been “that the power of removal was a part of the executive power, and therefore belonged to the President.” Id. at 76. He claimed that this was “the recognized construction of the constitution” until the Civil War. Id.; see also id. at 77 (remarking that, after the repeal of the limits on presidential removal imposed by the Tenure of Office Act, “the early interpretation of the constitution must be regarded as the correct one at the present time” and describing the conferral of removal authority on the President as having “been of incalculable advantage in producing an efficient and harmonious national administration”). We might part ways with some of the details in Goodnow’s account, and we take no position on whether Goodnow expressed different views in other writings that we have not mentioned. At a minimum, however, these discussions from Goodnow’s 1905 and 1916 books flatly contradict Katz and Rosenblum’s assertion that the concept of an executive power of removal “disappeared . . . quickly.” Katz & Rosenblum, supra note 4, at 416.Show More Professor Goodnow once remembered what some modern historians have forgotten.

As we discuss below, this is not the only occasion where we part ways with Katz and Rosenblum’s characterization of our article or the underlying sources. Specifically, they spend a significant portion of their response on the question of removal under the Pennsylvania Constitution—claiming, for example, that “Pennsylvania’s charter made no mention of executive removal”14 14.Katz & Rosenblum, supra note 4, at 407 (citing Pa. Const. of 1776, §§ 20, 22–23, 30, 34).Show More and that a 1784 report by Pennsylvania’s Council of Censors “probably means nearly the opposite” of our characterization of it.15 15.Id. at 417–18.Show More Respectfully, we disagree. Katz and Rosenblum fail to recognize that the Pennsylvania Supreme Court explained at an early date that, despite the Pennsylvania Constitution’s silence, “it has been generally supposed, that the power of removal rested with the Governor, except in those cases where the tenure, was during good behavior.”16 16.Commonwealth ex rel. Lehman v. Sutherland, 3 Serg. & Rawle 145, 149 (Pa. 1817).Show More And they bury in a footnote a concession that a passage in the Censors’ Report “might be read to suggest that the Censors believed removal was ‘an executive power’ and so support Bamzai and Prakash’s argument.”17 17.Katz & Rosenblum, supra note 4, at 420 n.111.Show More As we explain at length below, their concession is appropriate; the Censors’ Report supports our position. And the early history of gubernatorial removal in Pennsylvania is itself a fascinating case study with parallels to federal removal practice.

In addition, Katz and Rosenblum claim we were mistaken to rely on data from a study by the political scientist Carl Fish to show how often presidents removed executive subordinates in the early Republic. They claim that many such removals occurred on appointment of a successor, because for positions requiring Senate advice and consent, “removal was incident to appointment: the appointment and confirmation of someone new removed the previous officeholder.”18 18.Id. at 421. As an initial matter, Katz and Rosenblum suggest that removals that occurred upon the appointment of a successor did not happen “in the way Bamzai and Prakash use the term in their Article.” Id. at 422. But that misdescribes our article, which purposefully did not take a position on how removal had to be accomplished. Cf. Bamzai & Prakash, supra note 1, at 1787 (discussing issues that might arise due to a dispute over the timing of a removal).Show More But leaving to one side that nothing in our claim turns on Fish’s precise number of removals (which we did not even cite), we explain below that, in high-profile instances, presidents removed executive subordinates without Senate participation. Katz and Rosenblum’s theory of removal-by-appointment fails to explain such removals. And as demonstrated by the at-pleasure commissions conferred on executive branch officials, along with statements by executive branch officers, it was certainly the view of many that presidents could unilaterally remove.

Our Essay proceeds as follows. In Part I, we set forth the analytical framework for a presidential removal power. At the risk of “rehashing”—which we now understand to be strictly verboten—we rely upon some of the same material we previously surfaced in The Executive Power of Removal. In Part II, we turn to a significant state-law antecedent to the federal Constitution—removal in the context of the Pennsylvania Constitution. This portion of the Essay introduces “new” sources and arguments from one State that might have played a role in the drafting of the federal Constitution.19 19.We use the word “new” with some trepidation, given how hawkishly it appears some of our interlocutors police that language.Show More In Part III, we address the role of early federal practice. Finally, in Part IV, we address some overarching methodological points.

  1.  See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023). ↑
  2.  For recent cases, see Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010); Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020); Collins v. Yellen, 141 S. Ct. 1761 (2021). ↑
  3.  See Myers v. United States, 272 U.S. 52 (1926). As explained, we did not address those officials performing functions for the territories and the District of Columbia—where Congress might have greater authority to structure administration. See Bamzai & Prakash, supra note 1, at 1802–18. Moreover, we did not dispute that a non-executive institution, like Congress, can initiate “removal” of an executive officer, say, by impeachment. See U.S. Const. art. II, § 4. And we bracketed the question of whether the President has similar removal authority over inferior officers appointed by others. See Bamzai & Prakash, supra note 1, at 1830–35. ↑
  4.  See Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023). ↑
  5.  As best we can tell, Katz and Rosenblum do not concede that the President has a removal authority that Congress can regulate using the Necessary and Proper Clause. Thus, it appears to us that their view departs from the perspective of those, like Justice Kagan, who believe that the President possesses an indefeasible constitutional power to remove close military or diplomatic advisors, because the absence of such power would impede the President’s performance of his constitutional duties. See, e.g., Seila Law, 140 S. Ct. at 2233 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part). ↑
  6.  Katz & Rosenblum, supra note 4, at 425. ↑
  7.  See id. at 404 (“We are not convinced that the Article says much that is new.”); id. (“[I]t was unclear to us which materials were new or what the new materials added.”); id. at 406 (arguing that “Bamzai and Prakash’s argument is not new”); id. at 416 (claiming that our argument “largely rehashes old arguments with old sources”); id. at 417 (“We are unsure what Bamzai and Prakash believe is new about their argument.”). ↑
  8.  Id. at 405. ↑
  9.  Of course, feel free to read The Executive Power of Removal too. ↑
  10.  Katz & Rosenblum, supra note 4, at 416. Parenthetically, as anyone familiar with history knows, arguments can come and go, such that even if an argument disappeared at some point, it would not necessarily dispose of a claim that the argument existed in, for example, the eighteenth and early nineteenth centuries. At any rate, Katz and Rosenblum’s assertion that our claim “disappeared” is contradicted by the very source that they cite. ↑
  11.  Id. at 416 n.94 (quoting Frank J. Goodnow, Principles of Constitutional Government 88–89 (1916)). ↑
  12.  Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:

    The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:

    1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.

    Frank J. Goodnow, Principles of Constitutional Government 91 (1916). As this language makes clear, Katz and Rosenblum simply misinterpret Goodnow. Even while questioning whether other presidential powers derived from the Vesting Clause, Goodnow plainly acknowledged that the executive power was thought to encompass removal. (We leave to one side the question of whether a 1916 disappearance would count as “quickly” following the Constitution’s adoption.) ↑

  13.  In a 1905 book, Goodnow foreshadowed the perspective that he explicitly articulated in 1916. See Frank J. Goodnow, The Principles of the Administrative Law of the United States (1905). There, Goodnow described “the interpretation of the constitution made by the first Congress relative to the President’s power of removing officers” as having been “that the power of removal was a part of the executive power, and therefore belonged to the President.” Id. at 76. He claimed that this was “the recognized construction of the constitution” until the Civil War. Id.; see also id. at 77 (remarking that, after the repeal of the limits on presidential removal imposed by the Tenure of Office Act, “the early interpretation of the constitution must be regarded as the correct one at the present time” and describing the conferral of removal authority on the President as having “been of incalculable advantage in producing an efficient and harmonious national administration”). We might part ways with some of the details in Goodnow’s account, and we take no position on whether Goodnow expressed different views in other writings that we have not mentioned. At a minimum, however, these discussions from Goodnow’s 1905 and 1916 books flatly contradict Katz and Rosenblum’s assertion that the concept of an executive power of removal “disappeared . . . quickly.” Katz & Rosenblum, supra note 4, at 416. ↑
  14.  Katz & Rosenblum, supra note 4, at 407 (citing Pa. Const. of 1776, §§ 20, 22–23, 30, 34). ↑
  15.  Id. at 417–18. ↑
  16.  Commonwealth ex rel. Lehman v. Sutherland, 3 Serg. & Rawle 145, 149 (Pa. 1817). ↑
  17.  Katz & Rosenblum, supra note 4, at 420 n.111. ↑
  18.  Id. at 421. As an initial matter, Katz and Rosenblum suggest that removals that occurred upon the appointment of a successor did not happen “in the way Bamzai and Prakash use the term in their Article.” Id. at 422. But that misdescribes our article, which purposefully did not take a position on how removal had to be accomplished. Cf. Bamzai & Prakash, supra note 1, at 1787 (discussing issues that might arise due to a dispute over the timing of a removal). ↑

  19.  We use the word “new” with some trepidation, given how hawkishly it appears some of our interlocutors police that language. ↑

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