Justice Barrett asked several good questions yesterday at oral argument in Trump v. Slaughter, which deserve a further response.
First, Justice Barrett asked Solicitor General D. John Sauer whether the Court should rest its holding in this case on the allegedly narrower grounds of removal as flowing from the Take Care Clause of Article II, Section III, or as being an incident of the Appointment Power, rather than holding that the Executive Power Vesting Clause confers the removal power.
The Take Care Clause argument overlooks the fact that the body of the Constitution confers what it calls "Power" only in a limited number of places: the three Vesting Clauses; the eighteen clauses that confer limited and enumerated 'Powers' on Congress in Article I, Section 8; and a few other places. There are, to be sure, other clauses that confer power elsewhere in the Constitution without using the word "Power," like the New States Admission Clause, but they are few and far between. It would be textually odd for the removal power, which is a part of "The President's Power to Execute the Laws"—a power that the President assuredly has—to be found in Article II, Section 3 as the fifth in a series of six duties that Article II, Section 3 imposes upon the President and that does not use the word "Power."
