From my recent essay on the Opinions Clause:
One of the strongest arguments against the unitary executive interpretation of the Constitution is based on the Opinions Clause. If the President has constitutional authority to direct executive branch officials, why was a clause that authorized him to “require the Opinion, in writing, of the principal Officer in each of the executive Departments” needed? After all, even without the Opinions Clause, the President could simply direct a principal officer to provide him with a written opinion. Under the unitary executive view, then, the Opinions Clause appears to be redundant.
While defenders of the unitary executive have contended that the Clause is not redundant, many commentators are unconvinced. In fact, some originalists, such as Caleb Nelson, have become persuaded, in part based on the Clause, that the unitary executive view is mistaken.
But the Opinions Clause can be reconciled with the unitary executive. The Clause is not redundant because it serves two significant purposes: it answers a question that readers at the time of the Constitution’s enactment would have asked, and it renders unconstitutional a statute that might otherwise have been constitutional and might have been passed.
To understand the function of the Opinions Clause, one must go back to the period prior to the Constitution when virtually all American executives in the states employed executive councils as a limit on executive power.
One of the biggest changes that the Constitution made to prior law was to abandon executive councils. To people who feared excessive executive power, this change was disturbing. Leading Anti-Federalists, such as George Mason, Brutus, Cato, and Richard Henry Lee, all cited the lack of an executive council as a reason for opposing the Constitution.
One function of the Opinions Clause involved the provision of information to the chief executive.
If the Constitution had omitted the Opinions Clause, the obvious question that would have arisen for people deciding whether to support the Constitution is, given the absence of an executive council, how would the President secure the advice that executives previously received and how would these advisors be made accountable?
The Opinions Clause answered those questions by making clear that the President could seek the advice in writing of the principal officers. Thus, the President would receive advice, and that advice would be in writing and therefore on record.
Since these written opinions (as a substitute for executive councils) were a new method for receiving advice, readers of the Constitution would not necessarily have anticipated it.
A second function of the Opinions Clause involved holding unconstitutional a law that might have been passed by the new Congress.
While the advocates of executive councils lost at the Philadelphia Convention, that does not mean the threat of such councils was permanently eliminated. One type of council which existed in many states is what I call a mandatory advice council.
Under this type of council, the governor was sometimes required to seek the advice of his council but appeared not to be obligated to follow it. These constitutions often required that the advice be recorded and then made available to the legislature upon request.
The popularity of such councils might have led Congress to pass a statute requiring mandatory advisory councils.[2] In particular, Congress might pass a law mandating that the President consult with a council consisting of the principal officers of the executive departments before taking certain actions. The advice provided by the officers would be recorded and kept on record. While such consultations would not bind the President, they would nonetheless create a written record of the advice he received.
Under a unitary executive interpretation, this statute might be constitutional, especially in certain circumstances. Since the President would make the ultimate decisions, it would appear to be consistent with the key feature of the unitary executive. Requiring the President to be advised by executive officials might then seem to be within Congress’s necessary and proper authority.
Thus, a law establishing a mandatory advisory council would appear to be constitutional in certain circumstances.
Here is where the Opinions Clause becomes relevant. The Opinions Clause would prohibit a statute establishing a mandatory advisory council. The Clause states that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
While the most obvious import of the Clause is either to authorize the President to take such actions or to acknowledge his power to do so, the Clause also indicates that Congress may not require the President to request a written opinion from a principal officer. After all, the Clause states that the President “may” require the opinion in writing, which suggests that the President has the discretion to decide whether or not to require an opinion.
Read the whole thing.
Posted at 8:00 AM