SCOTUSblog has added Chad Squitieri (Catholic University of America) as a regular commentator (an excellent addition!). In his first post, Squitieri criticizes the Court’s reasoning (though not necessarily its conclusion) in Trump v. Slaughter. The problem as Squitieri sees it is that “the relevant constitutional provisions were left camouflaged beneath the surface of the court’s analyses, which relied on vague references to the ‘separation of powers’ in the abstract, rather than specific separation-of-powers provisions.” For example,
the court stated in matter-of-fact terms that “Of course the President could not fire” the vice president. But if the president’s removal power is ultimately traceable to an abstract conception of the “separation of powers,” is that actually so obvious? After all, the vice president is positioned to bring tremendous influence to bear on policies throughout the executive branch – not just policies that happen to fall within the purview of any one agency or commission. Given as much, one might be inclined to think of the vice president as being one of the most important voices within the executive branch, and thus reason that if the “separation of powers” empowers the president to fire relatively obscure federal commissioners, the same “separation of powers” should similarly empower the president to fire the vice president.
Squitieri argues that the Court could have placed its judgment on firmer ground “by tracing the president’s removal power to the constitution’s actual text, rather than an abstract conception of the ‘separation of powers.'”
Although one might intuitively think of the vice president as formally existing within the executive branch, the Constitution places the vice president, unintuitively, in the legislative branch. More precisely, the Constitution establishes the “Congress of the United States” as “a Senate and House of Representatives,” and clarifies that “The Vice President of the United States shall be President of the Senate” with the power to cast tie-breaking votes.
In light of the vice president’s legislative character, a court that carefully traces the president’s removal power to the Article II vesting and take care clauses can harmonize a broad presidential removal power with the president’s inability to remove the vice president.
Read the whole post here.
Posted at 2:13 PM