Michael B. Rappaport (University of San Diego School of Law) has posted Reconciling the Unitary Executive and the Opinions Clause (5 pages) on SSRN. Here is the abstract:
One of the most common arguments against the unitary executive interpretation of the Constitution is that it renders the Opinions Clause redundant. This essay argues that this claim is mistaken. Even under the unitary executive, the Opinions Clause serves two important purposes rooted in the Constitution’s abandonment of executive councils, which had been widely employed under the state constitutions. First, the Clause answers a question that readers at the time would have asked: how will the President receive advice without a council? Second, the Clause renders unconstitutional a statute that might otherwise have been constitutional—one requiring the President to seek the nonbinding advice of a mandatory advisory council.
This is a key point in the debate over presidential removal power, as discussed in the essay by Ilan Wurman noted yesterday. Professor Wurman writes:
… [A]s 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.
Perhaps, but I’m inclined to favor Professor Rappaport’s explanation of the opinions clause, which doesn’t depend on such far-reaching conclusions about the President’s power.
Posted at 6:02 AM