Originalism and Executive Power:

A Conversation with Judge Readler

Interview Conducted and Transcribed by Maclain Conlin (All errors are my own).

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(All views expressed in this interview are those of the guest and do not necessarily represent the position of the Clemson Law Review or its leadership.)

Maclain Conlin:[1] Good afternoon, and welcome to the Clemson Law Review’s interview series. My name is Maclain Conlin, and today we are joined by a very special guest, Judge Chad Readler.

Judge Readler earned his undergraduate and law degrees from the University of Michigan.  After graduating, he served as a law clerk to Judge Alan Norris of the United States Court of Appeals for the Sixth Circuit. Judge Readler then began practicing law in the Columbus office of the international law firm Jones Day, eventually spending ten years as a partner in the firm’s Issues and Appeals Practice Group. While at Jones Day, Judge Readler appeared in state and federal trial and appellate courts around the country, most frequently the Supreme Court of Ohio and the Sixth Circuit. Judge Readler also successfully argued before the United States Supreme Court in McQuiggin v. Perkins on behalf of an inmate claiming actual innocence. His other pro bono representations include representing capital defendants before the Tenth Circuit and the Supreme Court of Ohio, as well as representing defendants sentenced to life in prison before the Sixth Circuit. While at Jones Day, Judge Readler traveled to Nairobi with Lawyers Without Borders to train Kenyan lawyers in prosecuting domestic violence cases, and he was also a recipient of the American Marshall Memorial Fellowship awarded by the German Marshall Fund of the United States. Following his career in private practice, Judge Readler served as Acting Assistant Attorney General for the Civil Division of the United States Department of Justice from 2017 to 2019. In that role, Judge Readler led and supervised over 1,000 lawyers in the Department’s largest litigating division, briefing and arguing several cases on behalf of the United States in federal courts across the country, including high-profile cases significant to the Administration and the Department. In March 2019, Judge Readler was confirmed to serve as a Circuit Judge on the Sixth Circuit. He teaches Presidential Powers to law students at both the University of Michigan and the Ohio State University. He resides in Columbus. 

Today, he kindly joins us to discuss some of his own experiences regarding executive power and some of the lessons that we can learn from the Founding generation about this issue.  

Judge Readler, thank you for joining us.  

Chad Readler: Thank you, Maclain. It’s wonderful to be here and congratulations on your success with this publication. It’s a real service.  

MC: Thank you. We could not exist without the kind contributions of scholars like you who choose to offer their time. Before we get into some of these very complex executive power  issues, I’d like to start off by asking you about a very serious question in constitutional law:  If you went to the University of Michigan and now teach at both Michigan and Ohio State,  who do you root for in the Michigan–Ohio State game?  

CR: Well, I live in Columbus but I grew up not far from Ann Arbor and went to undergrad and law school at the University of Michigan. Some questions are very difficult for jurists, but this is a pretty easy one for me. Go blue! I’m a Michigan sports fan but I love teaching at Ohio State Law School. I’ve had some amazing students. It’s a great law school, so it’s nice to have connections to both universities.  

MC: My dad grew up in Ann Arbor as well, in Burns Park, so it thankfully isn’t a very difficult question for our family, either! To begin our discussion, would you mind providing an overview for our readers of what the Justice Department’s Civil Division is, and your role in that Division during the first Trump administration?  

CR: The Civil Division represents 1,000 lawyers working in Washington, D.C. It is the largest litigating division at the Department of Justice. The Department as a whole is enormous and includes things like the FBI, ATF, and the Bureau of Prisons, which many people might not initially realize. 

The DOJ also includes lawyers and divisions around the country. Many people might think that the meat and potatoes work of the DOJ involves national security and law enforcement matters, but the Civil Division handles really important cases on the civil side of the legal ledger. Perhaps the most high profile responsibility for the Civil Division is defending administration and presidential priorities, whether those are executive orders of the President, rules and regulations put into place by executive branch agencies, or handling challenges to acts of Congress.  

For me, that ranged from defending the travel ban, which was President Trump’s first major executive order in his first administration, to the DACA litigation, to litigation over the census, to issues like whether, at the time, President Trump could block people on his Twitter account.  

The Civil Division handles many cases that deeply affect the presidency–some in more substantive ways, some in other ways. But the Division also does more work than that. It handles immigration enforcement for the executive branch. It has a commercial branch that engages in litigation where the government is acting like a commercial actor in some respect. It enforces something called the False Claims Act, which punishes fraud in government contracts. It enforces consumer protection laws like the Food, Drug, and Cosmetic Act. So there is a whole range of things done in the Civil Division. There is a terrific team of government lawyers there committed to public service that serve from one administration to the next.  

I was a political appointee, so I was appointed by the Attorney General and I worked in the first Trump administration. But most lawyers at the Department of Justice and 99% of the lawyers in the Civil Division are career lawyers that come in through the civil service and typically work for more than one administration.  

It was really a pleasure to work there. We’re doing this interview in February of 2025, so the current Civil Division is very busy. The President has been very active with different directions to the executive branch through executive orders, and a lot of those matters are in court right now.  

MC: Given the current litigation surrounding executive power, are there any lessons about executive power that you learned at the Civil Division which you would like to share? 

CR: There are so many. As you mentioned, I teach a class on presidential powers and I start the class by coming down pretty hard on Congress. Thinking about relative aspects of the separation of powers, the legislative branch is addressed in Article I of the Constitution.  I think the Framers designed Congress to be the most powerful branch of government. It has a wide variety of powers. Just look at Article I, Section 8. Congress has the power to tax, to declare war, regulate interstate commerce, etc. But Congress does not legislate as frequently these days. There is a power vacuum, so on important policy matters the executive branch has been stepping up. This has been front and center in American life over the past few years, perhaps decades.  

And most executive decisions–whether they are at the federal level or at the state level–end up in litigation. So the lawmaking process where a law used to be passed by the House and Senate and signed by the President has now become one where the President takes an executive action, then there's a lawsuit, and then the courts decide.  

So we really have two branches engaged in the current governing process: first, the executive branch, actively, through asserting power, and second, the courts, through receiving and hearing cases about the scope of the President’s power.  

There's just so many questions about this topic–some of which have been answered in the last ten or so years and some of which are currently pending in the courts. There’s so much going on right now in the area of separation of powers and executive branch authority. We will have more cases, I think, coming down the pipe even from the Supreme Court in the next few years. 

MC: Many of the cases filed against the executive branch use something called “universal vacatur,” asking a court to set aside in its entirety an action taken by the executive branch.  Would you mind giving a brief overview of what that concept is, and how does the Sixth Circuit currently handle that issue? 

CR: There are a couple of different types of remedies that courts can enter, but in standard litigation, where you are seeking to halt something that a political actor is doing, you seek an injunction. The ordinary rule is that if the court agrees with the plaintiffs that they are deserving of relief against the government, the court should give relief to those plaintiffs, but typically nothing more. So if you are suing the government, saying the government needs to stop something and you win, the court should enjoin that government rule or law from being applied against you.  

But sometimes courts are deciding that, “Well, if the law is unconstitutional as to Maclain, it must be unconstitutional as to everyone, so I'm going to enter a nationwide injunction (or, as Justice Gorsuch puts it, a ‘cosmic injunction’).” This is a bit of a departure from history, where it was very common for issues to percolate throughout the circuits first. So someone might have won a case in the Fifth Circuit but a similar type of claim fails in the Sixth Circuit. There’s a split in the circuits and it goes to the Supreme Court.  

But trial courts’ granting of nationwide relief pushes these issues up the ladder far more quickly because you have judges anywhere in America–including as far away as Hawaii, where I actually litigated the travel ban while at the DOJ–who can stop a President from implementing a policy nationwide.  

It can get more complicated because you can see groups of states sue the Federal Government too. There are probably 20–25 more conservative states and 20–25 more liberal states. So regardless of the President, there will usually be states eager to sue the President for various reasons.  

It could be that, for a court to actually give relief to those states and their residents, it requires pretty broad relief, if not a nationwide injunction, so sometimes that kind of relief might be justifiable under the traditional rules. But these are the kinds of issues that the federal courts are facing.  

Turning to the term “vacatur,” that sometimes refers to administrative agencies’ actions that are then challenged under something called the Administrative Procedure Act (APA).  If an agency issues a rule or regulation, there’s an ability for individuals to challenge that action under the APA. They challenge the rule as being arbitrary and capricious. The APA allows the court to set aside an arbitrary or capricious rule or essentially “vacate” it. Yet that statutory language has prompted the question whether the court should vacate the rule universally or only as applied to certain plaintiffs?  

These are all live issues right now and courts across the country have split on how they  approach them, but I will say that during the first Trump administration there were many  national injunctions against President Trump, there were many against President Biden  during his term, and it may be that everyone has had their ox gored here, politically, so to  speak. So perhaps this type of practice is losing support on both sides of the aisle.  

Congress could legislate in this area. The Supreme Court could also step in and clarify what the rules will be in this context.  

MC: Thank you for that explanation, sir. I certainly hope the Supreme Court will step in on this issue very soon.  

Turning to the historical background of this issue, you mention that you teach a course on executive power. As an originalist, would you mind taking a brief moment to speak about the role that the Founders envisioned for the President in our constitutional system? 

CR: I think it's debatable, like a lot of things at the Founding. I preempted this question a little bit by saying that Congress was supposed to be the most powerful branch and I've heard some preeminent scholars say that Articles II and III were mainly created as checks on Article I.  

All the branches check each other, but really Congress was the heavyweight and then you arguably had these two other branches to make sure that Congress couldn't get out of line.  But that isn’t how things have progressed today. For a variety of reasons, perhaps partisan politics, Congress has become a bit defunct in tackling major policy issues. 

There doesn’t seem to be much institutional pride in the branch. I think the Framers thought that Congress qua Congress would seek to act in the best interests of the legislative branch and go against the President on that basis at times, for example.  

Today, it feels like decisions are made more based on partisan politics. If it’s a Republican President, then Republicans in Congress seem more likely to cede to what the President wants. And with Democrats, it's the same when the President is a Democrat. 

In terms of the Framers’ understanding, in some of the Federalist Papers, Alexander Hamilton–who had a broader view of executive power–talked about energy in the executive. He rejected the idea that there should be two executives. He thought that there had to be one and that it had to be someone who had the energetic ability to lead and take action.  

So Hamilton thought the President should be more than a Prime Minister who is just totally answerable to the legislature but short of a King–I think somewhere in between. I don't know if the Framers envisioned that the Presidency eventually would grow in power but with respect to domestic power the Framers did not give the president that much authority. In a sense, when you think of foreign facing matters the President of course is the Commander–in–Chief. The President has the ability to recognize ambassadors and is our point person on foreign relations. But with respect to domestic powers, those are almost all up to Congress. The President has the power under Article II to take care that the laws passed by Congress are faithfully executed.  

That notion of what it means to faithfully execute the law is a current topic because the source of the President to act in domestic areas is primarily statutory authority, and that power has taken on sort of a life of its own, where Presidents are asserting broad delegations of power from the Congress to take various actions and courts are being asked  to weigh in.  

The courts, to round out the picture, were declared the least dangerous branch at the Founding. Today, the courts are much more front and center in public life because many more matters are going to court.  

So I can't fault the courts for cases being brought to the courts–there’s just more of them, and that’s largely out of a court’s control. And some of the cases are very high profile. Some people seem to view the courts as “political.” I reject that notion, but I would also add that courts are receiving more cases with political implications, so I can understand why one might think courts have a political nature to them. I think the Framers would be a little surprised by how the branches now interact with each other.  

MC: On the point that more politically charged cases are being brought to court, do you think that’s because Congress hasn’t stepped in on many issues or do you think it’s because the ability to get relief has expanded? There's been an explosion in the number of politically charged cases recently. Why do you think that is? 

CR: Congress could legislate more precisely on many issues. Immigration is a great example. We haven't had a major reform to immigration laws probably since the Reagan administration. There was one discussed during the Bush administration that was almost finished but wasn’t. 

I’m not advocating for any particular kind of reform, but I think most Americans would agree that current immigration laws don't meet current immigration demands. But short of Congress providing more clarity, it’s up to the President. All recent Presidents have ordered their administrations to take significant actions with respect to immigration.  

So it's up to the courts to decide whether the executive branch had the power to begin with.  When reviewing an act of Congress, assuming Congress has the power to legislate in the area, we are often asking what a specific word in the statute passed by Congress means?  When it is a President acting, we typically have to consider what power the President is asserting – statutory or constitutional? In other words, we have to ask whether the President (or the executive branch more broadly) has any power to begin with. With respect to executive branch actions that rest on statutory grants of power, it bears noting that Presidents are invoking laws that may not be perfect fits or even reasonable fits to the current situation to resolve current problems. So that can complicate a court’s analysis. 

But maybe my broader point is that we have become a pretty litigious society generally. We can't just blame people who sue the President–we sue each other quite a bit. The Supreme Court has at times been open to arguments to expand constitutional rights, especially in the Warren Court in the ‘60s and ‘70s. So that brought people to court seeking relief that perhaps they could not achieve through their state or federal representatives. That might have been the point that tipped off the idea that courts can play multiple roles in achieving policy outcomes, and that has just been exacerbated ever since.  

MC: Thank you for that, sir. Turning to another development of the twentieth century, it seems that while the power of the presidency has grown, the presidency has actually receded in some ways from what the Framers might have envisioned–for example, with the rise of independent agencies.  

CR: I’ll start with the agencies that are part of the executive branch which are created by Congress. I don't think the Framers had any idea how large the executive branch would grow or that we would have these major agencies covering every area of life. Housing, transportation, labor, etc.–you name it, there’s an agency for it.  

The executive branch has grown immensely. That's another reason why more policy comes out of the executive branch. Congress conversely, when it writes laws, often does so at a high level that gives broader power to executive agencies to decide how they will legislate. The courts have responded by calling that practice into question, sometimes trying to make sure that Congress isn’t giving away too much power and that executive agencies aren’t assuming too much power. 

Then you have what are called “independent agencies,” which have some legislative and some enforcement type power. Typically, they are multi–member institutions–the Federal Trade Commission, the Securities and Exchange Commission, the National Labor Relations Board, etc., these are all entities which have significant influence over daily life and business.  

The President only has limited authority over these agencies under the current legal regime because the agencies have multiple members and the members have terms, so the President might be able to appoint one person the first year of the President’s term, and then another the second year, etc. It might take three or four years to have appointed the majority of that agency and, in that sense, give the President control over the agency, at least indirectly.  

And then these individuals also have removal restrictions. You might think that the President could just come in and fire everyone and replace them, but Congress has put in restrictions that allow the President to remove members only for cause—so not just because the President disagrees with their decision making, but rather that they have done something far beyond their authority or something illegal.  

So at the moment the President cannot change the makeup of these agencies even though these agencies have some executive branch authority. But these issues are currently being litigated. 

The case from 100 years ago that upholds this power is called Humphrey’s Executor. The Solicitor General’s Office under President Trump and Attorney General Bondi just announced that it no longer believes Humphrey’s Executor should be good law and that it infringes upon the President’s authority and is unconstitutional.  

So they're teeing up a case which might go up to the Supreme Court in the next few years and it will be tested. We will see if the Court is willing to give the President more power in this area.  

The Federal Reserve is probably the ultimate independent agency, given the scope of its responsibility. If the Supreme Court is considering whether to void statutory removal restrictions, it will have to ask if it will do so as to all independent agencies, or just some.  The Fed has so much influence over the national economy and we've now for many years  had a system where the President can use a bully pulpit to influence the Fed and appoint  members from time to time but can’t actually control the Fed, creating a sort of love-hate  relationship between the two in terms of managing the national economy. 

MC: Have there been any cases where an official with for cause protections enacted a rule which was later struck down in court, and then a President claimed that he could remove the official because he exceeded his authority, giving him “cause”? 

CR: There might be. I can’t think of one at the moment. I think generally the “for cause” restriction is viewed to be a much higher threshold, meaning it makes it difficult for the appointees to be removed. To do so, at least under current law for multi-member agencies, the President needs a very, very compelling justification to offer the court and may very well lose.  

MC: Thank you again for your time. For our final question, you mentioned cases like Humphrey’s Executor might be revisited in the next few years, perhaps on originalist grounds. How do you, as a lower court judge, address Supreme Court precedents that you might disagree with as a matter of original meaning but nevertheless are still binding Supreme Court precedent?  

CR: We have a structured system. The Constitution created a Supreme Court and then it refers to other inferior courts. I take that to heart−we are an inferior court. We follow Supreme Court precedent so there's no question about that as a sort of threshold matter. If I identified an issue where I really thought the Supreme Court had seriously misunderstood the original meaning of the Constitution, I could certainly write an opinion highlighting those problems with the hope that the Court would look into that at some point in the future.  

Obviously, different legal trends develop over time, and issues from different generations sometimes are resolved in different ways for different reasons. Regardless, I feel very bound by the Supreme Court’s decisions.  

While those decisions are binding, not every case I decide is squarely controlled by a Supreme Court precedent. So if the Court announces a precedent but you have a slightly different question at issue, you may have to figure out how to apply that precedent to a new situation, which happens all the time. Jurists acting in good faith can disagree about what the Supreme Court said in one case and how to apply it to a future case. That happens all the time.  

Lower court judges can be accused of not following the Supreme Court. But perhaps the judges would respond that, “This is a different case with different facts and Supreme Court cases do not dictate an outcome here, so we have a little more freedom to decide the case in this circumstance.” 

We did have a case in court last year where we sat en banc with all sixteen judges instead of our usual three-judge panel. That was a hard case because we had a precedent on the statute from the Supreme Court that said one thing but then we had a number of intervening precedents that didn't address this exact statute but addressed nearby statutes where the precedent was totally in the opposite direction. And we had statutory changes as well as real world developments. So we had to reconcile this older case which was mostly on point that said one thing with these new cases that went in a totally different direction.  Many of the judges on my court noted in their opinions the force of the new cases, but we debated what that meant for the outcome in our case. In the end, I read the intervening cases as having a bit more force than did my colleagues.  

So we have cases all the time where the Supreme Court is pulling us in different directions and we have to decide what to do. The Supreme Court doesn't hear many cases per year. It mainly hears cases dealing with conflicts between circuits. When those splits develop, the Supreme Court will often feel compelled to weigh in and tell us who is right and who is wrong.  

MC: Judge Readler, thank you for your time! 

CR: Thank you for inviting me. 

[1] This interview was conducted on February 18, 2025.