At The New Reform Club, Seth Barrett Tillman: A Note on the Opinion Clause and the Unitary Theory of the Executive. From the introduction:
I do not think it is all that difficult to explain the Opinion Clause as consistent with the President’s having a removal power per the unitary theory of the executive. I am not saying the unitary theory of the executive is correct [Ed.: but it is, though]—only that that position is consistent with the Constitution’s drafters’ having incorporated the Opinion Clause into the Constitution’s text.
The counter-position goes like this. If the President has a constitutionally granted power—i.e., a power not subject to limitation by federal statute—to remove principal Executive Branch officers which he appoints, then he can direct such subordinates to answer questions. If such an officer refuses to respond to the President’s inquiries, then the President can remove the non-responsive officer. In other words, if the President has an unqualified removal power, then the Opinion Clause has no real function because the power to request opinions flows from the power to remove.
But that argument does not work. This is why. …
Plus some thoughts on Professor Kagan versus Justice Kagan.
Posted at 12:53 AM