At Volokh Conspiracy, Steven Calabresi: Some Answers to Justice Barrett’s Questions in Trump v. Slaughter. Fro the introduction:
Justice Barrett asked several good questions yesterday at oral argument in Trump v. Slaughter, which deserve a further response.
First, Justice Barrett asked Solicitor General D. John Sauer whether the Court should rest its holding in this case on the allegedly narrower grounds of removal as flowing from the Take Care Clause of Article II, Section III, or as being an incident of the Appointment Power, rather than holding that the Executive Power Vesting Clause confers the removal power.
Professor Calabresi then argues (correctly in my view) that the vesting clause is the source. As to the take care clause, he begins:
The Take Care Clause argument overlooks the fact that the body of the Constitution confers what it calls “Power” only in a limited number of places: the three Vesting Clauses; the eighteen clauses that confer limited and enumerated ‘Powers’ on Congress in Article I, Section 8; and a few other places. There are, to be sure, other clauses that confer power elsewhere in the Constitution without using the word “Power,” like the New States Admission Clause, but they are few and far between. It would be textually odd for the removal power, which is a part of “The President’s Power to Execute the Laws”—a power that the President assuredly has—to be found in Article II, Section 3 as the fifth in a series of six duties that Article II, Section 3 imposes upon the President and that does not use the word “Power.”
…
Imposing a duty on the President could be seen as granting the President a power, but the more plausible reading of Article II is that the Vesting Clause of Section 1 grants the President the sole but delegable power to execute the laws. Section 2 then explicates and adds content to this open-ended grant of the executive power, conferred on the President alone by Section 1, by making clear that the President is the Commander in Chief of our military and that he has the pardon power and that, with the Senate, he has the power to make treaties and appoint all officers of the United States and acting on his own to make recess appointments. Section 3 of Article II then imposes six duties on the President including the duty to take care that the laws be faithfully executed, a duty that the President can only fulfill because Section 1 of Article II has already conferred upon him the executive power. And Section 4 makes it clear that Presidents and Vice Presidents, unlike British Monarchs, are subject to impeachment.
And from later on:
The case for presidential removal power under the Executive Power Vesting Clause of Article II is strengthened if one compares the Vesting Clauses of Articles I, II, and III with one another. It makes sense to compare the three Vesting Clauses with one another under the noscitur a sociis canon of construction that extremely similar clauses in a text should be construed according to the company they keep.
The Vesting Clause of Article I confers only all legislative powers “herein granted” whereas the Vesting Clause of Article II confers all of the executive power in on the President alone. Morrison v. Olson, 487 U.S 654 (1988) (Scalia, J., dissenting). This suggests that the executive power includes some very limited inherent powers like the removal power, or the protective power recognized by In re Neagle, 135 U.S. 1 (1890). See also United States v. Midwest Oil, 236 U.S. 459 (1915) (presidential power to withdraw federal lands from public use); United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936) (presidential foreign affairs power). The lesson taught by the Vesting Clause of Article I as to the Vesting Clause of Article II is that the President has more executive power than merely that which the rest of Article II “herein grants.”
Turning to the Vesting Clause of Article III, we must note that it is the only grant of power to the federal courts in all of Article III. This strongly suggests that the similarly-worded Vesting Clause of Article II is a grant of power to the President, which is expanded on [ed.: and limited by, as to appointments and treaties] by Article II, Section 2; as to which duties are imposed in Article II, Section 3; and which is capped by Article II, Section 4 rendering the President and Vice President impeachable.
Agreed. (Although I wish he would not cite Midwest Oil, which seems wrong, and Curtiss-Wright, which is probably right in result but contains some dreadful reasoning).
Professor Calabresi continues to Justice Barrett’s second question:
Justice Barrett also asked counsel for Slaughter how old the idea of independent agencies is, while quite rightly expressing skepticism as to the Sinking Fund being an independent agency but wondering whether the Interstate Commerce Commission had been an independent agency since the late nineteenth century.
He has some interesting thoughts in response, but I think the more basic point here is that the ICC is way too distant from the framing to be material evidence of original meaning. If the ICC is the first plausible candidate (and I think Justice Barrett is likely right that it is), that is evidence against the constitutionality (from an originalist perspective) of independent agencies.
Posted at 6:05 AM