At Law & Liberty, Ilan Wurman (Minnesota): Removal Power and the Original Presidency. From the introduction:
Caleb Nelson has recently weighed in with a long and thoughtful blog post on the so-called unitary executive debates and whether the president of the United States has a constitutional right to remove principal executive officers. Nelson is a famous and prominent originalist who is usually right about everything. His foray into this debate has caused something of a stir.
With all due respect to Nelson—and I mean it, since he’s absolutely right about the public rights doctrine, about sovereign immunity, and about much more besides—he has not quite considered all the arguments for the proposition that the president has a constitutional right to remove. His intervention, though, is critically important because he discounts, probably correctly, many of the older, standard theories of executive power and removal. He relies on works from Julian Mortenson and Jed Shugerman, among others. I have learned much from Professors Mortenson and Shugerman, too—and as I shall explain presently, I agree with Mortenson about the meaning of executive power and with Shugerman about the uncertainty regarding the so-called “Decision of 1789.” I do not, however, think that either of them has shown as a consequence that the president does not have a constitutional right to remove principal executive officers.
And from later on:
I also agree with Nelson that nothing about Article II supports the strong version of the so-called unitary executive thesis that the president must “be in charge of all exercises of executive power by the federal government.” But, as I argue in my Journal of Legal Analysis paper, one can believe—and many did at the time—that the president has no constitutional right to interfere with the duties of subordinate officers in whom Congress has vested discretion (unless Congress has said otherwise), but also believe the president always has the right to remove, for any reason, if he thinks those officers have not exercised their discretion well. This view would also make sense of the Opinions Clause, which Nelson, along with many others, suggests is otherwise superfluous. That clause would be necessary to impose a constitutional obligation on the principal officers to obey the president in this one respect—to provide written opinions about their duties—so that the president may receive information so that he may intelligently exercise the power to remove.
Whatever the Vesting Clause might otherwise grant the president—that is, regardless of whether the president can direct officers or has some other residuum of power—the executive power is, at a minimum, the power to oversee the execution of the laws by others. …
I agree with Professor Wurman’s basic points that (a) the President’s executive power vested by Article II, Section 1, is most fundamentally the power to execute the laws; (b) the power to execute the laws necessarily includes the power to remove officers whose duties include enforcing the laws; (c) Congress’ necessary-and-proper power does not include the power to reallocate powers granted by the Constitution; and (d) nothing in Professor Nelson’s much-talked-about short essay demonstrates anything to the contrary.
I also agree that the so-called “residuum” theory is not necessary to this analysis. Professor Wurman says:
The conventional view of executive power among formalists is that the Vesting Clause grants a “residuum” of executive powers, including, for example, foreign affairs-related powers traditionally exercised by the British monarch. If removal is executive in nature, and the Constitution does not assign that power elsewhere or otherwise limit the president’s exercise of it, then it vests in the president by virtue of the residuum.
I agree with the residuum theory, at least as it applies to foreign affairs powers not otherwise allocated by the Constitution’s text (see The Executive Power over Foreign Affairs and related publications here and here). But one can (as he does) reject this theory and still think the President has removal power. My view of removal does not arise from the residual theory; I agree that removal power is encompassed by the grant of law execution power itself. This was Justice Scalia’s view in Morrison v. Olson:
To repeat, Article II, § 1, cl. 1, of the Constitution provides: “The executive Power shall be vested in a President of the United States.”
As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation of powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that, since the statute vests some purely executive power in a person who is not the President of the United States, it is void.
This view does not rest on a theory that would extend executive power to mean something in addition to law execution power; it rests on the view that the Constitution vests the President with the law execution power and that Congress’ limits on removal take away some of that power.
I’m skeptical of a couple of Professor Wurman’s supporting points — notably that the President lacks power to direct executive officers, and that the association of appointment power and removal power is central to the analysis. But we have a shared view of the most important points.
Posted at 8:15 AM