At Dorf on Law, Eric Segall: Partisan Politics, Legal Realism, and the Myth of the Unitary Executive (commenting on this post by John McGinnis: Will the Court Tame the Administrative State?). From the introduction:
At the Law & Liberty Blog last week, Professor John McGinnis penned an homage to the Roberts Court decisions over the last few years invalidating how Congress has structured various administrative agencies. In a series of complicated cases, the Justices held that the President must be able to fire agency heads and other officials unconditionally and laws to the contrary, passed by the people's representatives, must give way. These opinions flow directly from the unitary executive theory developed by administrative officials in the Ronald Reagan Justice Department during the 1980's.
What makes these decisions so fascinating (and wrong) is that the Constitution's text does not support such a view, there is no persuasive historical evidence underlying the theory, and as a matter of policy it is a terrible idea to give one person so much power, as the Framers surely understood. What most explains these decisions, as even McGinnis implicitly concedes, is politics pure and simple. …
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The Constitution says nothing about who has authority to fire federal officers and under what conditions and is equally silent about how the administrative state is to be structured. Some proponents of the unitary executive theory have suggested that it is consistent with the parts of Article II that say the "Executive Power shall be vested" in a President and that he "shall take care that the laws be faithfully executed." Neither of these vaguely worded clauses, however, provides support for judicial second guessing and vetoing of Congress's decisions regarding how federal officers are to be fired. Professor Nourse has demonstrated that point beyond argument.
I disagree, and the disagreement illustrates my main disagreement with Professor Segall's critiques of originalism more broadly. I agree with him that (a) originalist analysis doesn't provide an answer to every important constitutional question, and (b) when originalist analysis doesn't provide an answer, a plausible approach (perhaps the most plausible approach) is for a judge to leave the matter to the political branches. Our core disagreement is on how often originalist analysis fails to provide an answer.
On the matter of executive removal power, I think the Constitution's text is sufficiently clear: "The executive Power shall be vested in a President of the United States." Calling this a "vaguely worded clause" doesn't make it so. To the contrary, it's straightforward. If the executive power shall be vested in the President, it follows that the executive power shall not be vested in anyone other than the President. As Justice Scalia famously argued in dissent in Morrison v. Olson, this doesn't mean that some of the executive power shall be vested in the President; it means that all of the executive power shall be vested in the President. Thus Congress cannot create an office of Attorney General, charged with directing federal prosecutions, entirely separate from and uncontrolled by the President, because then a large part of the "executive Power" would be vested in the Attorney General, not the President.
The narrower question in the recent cases Professor Segall discusses is whether Congress can limit the President's power to remove executive officers to situations where the President has good cause for removal. This is admittedly a harder question. But I still think the constitutional text points the way. Obviously, and as the Framers understood, the President cannot singlehandedly enforce the law. So there is a need for subordinate officers, and the Constitution clearly allows it, notwithstanding the executive vesting clause. That's because when executive power is wielded by a subordinate officer, that power is nonetheless still vested in the President if the President controls the executive officer. But to the extent the President does not control the subordinate officer, some of the executive power shifts from the President to the subordinate officer. Removal is essential to control; the President does not control a person he cannot remove. Thus the vesting of executive power entails removal power over subordinate executive officers.
As to history, Michael McConnell has an excellent account of the Framers' development of the unitary executive in The President Who Would Not Be King (ch. 10). He concludes that the Constitution's original meaning gives the President full power over law execution (though he relies more on the take care clause than I would.)
I agree that there are counterarguments (including Professor Nourse's interesting but ultimately unpersuasive [to me] article that Professor Segall cites). But I don't think a clause is made vague or ambiguous by the existence of possible alternative readings. The question is which is the most plausible reading. If two are equally plausible, or close to it, then originalist analysis may have difficulty providing an answer. I don't think that's the case here.
Finally, a few quick asides:
(1) I don't see this as a partisan issue the way Professor Segall does. Executive removal power benefits the President, whomever the President may be. In the modern era, both Democrat and Republican Presidents have argued for it. The most recent President to remove an executive officer in the face of a statutory restriction was President Biden (as discussed here).
(2) I also don't see why it's a "terrible idea," as Professor Segall says. The alternative is (among other things) that an incoming President has to operate to some extent through executive officers appointed by a predecessor, who may be of a different party and political philosophy. President Biden understandably prefers not to operate through officers appointed by President Trump.
But (3), I also doubt Professor McGinnis' conclusion that reclaiming executive removal power is central to taming the administrative state. I would say that the administrative state arises mostly from Congress' delegation of lawmaking authority to the agencies (whether fully controlled by the President or not). Whether that's constitutional is a different question, and a much harder one.
Posted at 6:40 AM