How to define executive power? That appears to be the key question in the district court order in Dellinger v. Bessent, the special counsel removal case. The district court ruled that the President lacks power to remove special counsel Dellinger other than through the (limited) removal procedures specified by statute. Here is the court's summary of the reasoning:
In short, the question presented in this case is whether it is an unconstitutional intrusion on the President’s Article II powers to say that he may remove the Special Counsel for reasons related to his performance, but he cannot do it on a whim or out of personal animus. It is an extremely narrow question with little or no precedential value given the sui generis nature of the Office of Special Counsel, and the fact that there is no longer any other agency with a single head, protected by similar restrictions, in the executive branch.
The Court finds that the statute is not unconstitutional. And it finds that the elimination of the restrictions on plaintiff’s removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence. The Court concludes that they must stand.
A review of both the statutory provisions setting out the powers and functions of the Office of Special Counsel, and the history of the legislation establishing the Special Counsel’s position and the terms of his tenure, reveals that his independence is inextricably intertwined with the performance of his duties. The Special Counsel’s job is to look into and expose unethical or unlawful practices directed at federal civil servants, and to help ensure that whistleblowers who disclose fraud, waste, and abuse on the part of government agencies can do so without suffering reprisals. It would be ironic, to say the least, and inimical to the ends furthered by the statute if the Special Counsel himself could be chilled in his work by fear of arbitrary or partisan removal.
Moreover, striking down the removal provision in the statute is not necessary for any of the reasons that have animated the invalidation of similar restrictions in the past. This Court’s ruling that the attempt to terminate the Special Counsel was unlawful is entirely consistent with the decisions reached and the legal framework set forth in the Supreme Court’s most recent opinions on this subject: Seila Law LLC v. Consumer Financial Protection Bureau and Collins v. Yellen.
First, those cases do not require a finding that the removal protections on the Special Counsel are unconstitutional because they expressly acknowledge that the Office of Special Counsel is not at all comparable to the agencies they were addressing. Second, and more importantly, this case does not present the affront to the President’s Article II authority that those did. What troubled the Court in both Seila Law and Collins were restrictions on the President’s ability to remove an official who wields significant executive authority. The Special Counsel simply does not. He cannot bring a case in court on behalf of the United States, impose a disciplinary sanction on behalf of the United States, demand payment on behalf of the United States, promulgate a regulation on behalf of the United States, or issue a decision on behalf of the United States. While he may perform some typically executive functions, such as conducting investigations, he has no power to enforce his own subpoenas or to overcome other agencies’ objections to his requests for records. If an inquiry reveals wrongdoing, he cannot bring a complaint or call for corrective action himself; he must petition a multi-headed quasi-judicial agency, or the appropriate administrative agency under Presidential control itself, to do so. They are free to turn him down.
The Special Counsel acts as an ombudsman, a clearinghouse for complaints and allegations, and after looking into them, he can encourage the parties to resolve the matter among themselves. But if that fails, he must direct them elsewhere. And along the way, while he is required to inform the President of certain findings, the statute also specifically directs him to report directly to Congress.
This is not significant executive authority. It is hardly executive authority at all.
The premise of this analysis seems correct. The President does not have, directly, a removal power. The removal power arises from Article II's vesting of "the executive Power" in the President, which in turn requires that the President have control over any officer exercising material executive power (else the executive power is not vested in the President, but in the officer). So the special counsel statute is constitutionally problematic only if the special counsel exercises material executive power.
That approach is, as the court says later, consistent with the Supreme Court's decision in Humphrey's Executor, which (as discussed here) turned on the Court's conclusion that the FTC commissioner did not exercise executive power.
But like Humphrey's Executor, the Dellinger opinion seems doubtful at the second step of applying that premise to the facts. The special counsel, as I understand it and as the court describes, is supposed to investigate complaints about misconduct within the executive branch. This is something we would expect the President, as the head of the executive branch and the person charged with taking care that the laws are faithfully executed, to have as a primary responsibility. Thus the special counsel acts for the President in investigating misconduct. While acknowledging, with Madison and other framers, that the boundaries of executive power may be difficult to discern, that nonetheless seems very "executive" to me. The court does not really say why it isn't executive (other than pointing out that the special counsel lacks other executive powers such as prosecution). In this respect the Dellinger opinion resembles the most unpersuasive part of Humphrey's Executor, which also did not adequately explain why Mr. Humphrey's duties were not executive.
Indeed, I think the Dellinger court did not actually think the special counsel's duties are not executive. The summary concludes:
In sum, it would be antithetical to the very existence of this particular government agency and position to vindicate the President’s Article II power as it was described in Humphrey’s Executor: a constitutional license to bully officials in the executive branch into doing his will.
First, we can replace the intemperate "bully" language with a more neutral statement: must we find that the President has "a constitutional [power] to [control] officials in the executive branch [so that they] do[ ] his will."? Then, the answer to that question is, of course: yes. That is what vesting the executive power in the President means, as the Supreme Court held in Seila and Collins. As the Dellinger court recognizes in this passage, the special counsel is an "official in the executive branch." His role is to investigate misconduct in the executive branch. Ultimately, the court's opinion is founded not on the dubious conclusion that the special counsel doesn't exercise executive power, but rather on the claim that in the exercise of the executive power of investigation, the counsel must be independent of the President. That may be good policy but it's not the constitutional rule.
UPDATE: At Volokh Conspiracy, Jonathan Adler and Josh Blackman have thoughts on the case.
Posted at 6:29 AM