In response to Adam Liptak’s New York Times article extolling UVA Law Professor Caleb Nelson’s essay doubting the originalist interpretation of the Constitution, Josh Blackman questions why the mainstream media only cares about originalist scholars when they buck the trend.

I think there is something of a pattern. The mainstream media will elevate originalism when it bucks conservative orthodoxies. But when originalism unquestionably supports a conservative position, it is described as fringe and radical.

Josh’s observation isn’t necessaryily wrong, but it’s easily explained by the old adage that it’s not news when dog bites man, but it is news when man bites dog. And Caleb Nelson’s post is man biting dog, good and hard.

“Bombshell!” William Baude, a law professor at the University of Chicago who himself is a prominent originalist, wrote on social media. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.

Professor Nelson, who teaches at the University of Virginia and is a former law clerk to Justice Clarence Thomas, wrote that the text of the Constitution and the historical evidence surrounding it grants Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people.

The Supreme Court will hear argument on whether to reverse Humphrey’s Executor, which held that the president had no authority to replace members of the Federal Trade Commission as an independent agency formed by Congress with its members serving terms, limited only by removal for cause. The issue has arisen because Trump has “fired” appointees of various independent agencies without cause, claiming that if the agencies fall under the Executive Branch, and since he’s the president and Article II of the Constitution vests the executive authority in the president, he can do whatever he pleases regardless of what Congress did when the agencies were formed.

Why is this such a contentious issue? The Supreme Court has, with the exception of the Federal Reserve, stayed restraints on the exercise of Trump’s removal powers on the shadow docket. No opinion. No rationale. No open reversal of Humphrey’s Executor, but the de facto reversal by allowing Trump to do what the longstanding precedent would prohibit.

When Nelson came out with the argument that this was not only bad policy, but unsupported by originalist theory, it was, as Will Baude said, a “bombshell.”

The article is particularly notable, said Richard H. Pildes, who is a law professor at N.Y.U. and one of the project’s founders.

“If a highly respected originalist scholar like Professor Nelson, on whom the court relies frequently, denies that originalism supports the unitary executive theory,” Professor Pildes said, “that inevitably raises serious questions about an originalist justification for the court’s looming approach.”

And given what the Court has done on the shadow docket (a name coined by Baude), the upcoming oral argument on the merits and the impact of reversing Humphrey’s Executor on decades of Congressional creation of agencies that were formed for the express purpose of being independent of the president and in reliance on Humphrey’s Executor, one of the foremost scholars on originalism undermining the unitary executive theory is, well, huge. Even Josh should recognize what a big deal this is.

Indeed, he wrote, “more than one member warned against interpreting the Constitution in the expectation that all presidents would have the sterling character of George Washington.” One member, Professor Nelson wrote, warned against “legalizing the full exertion of a tyrannical disposition.”

Letting the president fire officials “for reasons good or bad,” Professor Nelson wrote, would grant him “an enormous amount of power — more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.”

Of course, the fact that sound policy militates against such a destructive change in the law is one thing, but if the Supreme Court’s guiding theory is originalism, then what about the fact that there was no such thing as an independent agency at the time the Constitution was ratified?

“I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes,” he wrote.

But the textual and historical evidence is “far more equivocal than the current court has been suggesting,” he wrote.

The Constitution isn’t just Article II, and to ignore the power of Congress to enact laws that constrain presidential power is to ignore Article I. While there was no discussion of such matters at the time, there was also no discussion to suggest Congress could not, in enacting law, create independent agencies which include limits on the president’s power to fire its members.

“In the face of such ambiguities, I hope that the justices will not act as if their hands are tied.”

From the outside, it would appear that Humphrey’s Executor is already dead, and all that remains is for the Supreme Court to bury the body. But given the regularity with which justices have relied on former Clarence Thomas clerk Caleb Nelson to support originalist theory, perhaps the Court will consider the havoc they could wreak and the gross excess of power they will put into the hands of a man who lacks the “sterling character of George Washington.”