Yesterday’s decision from the Supreme Court in Trump v. Slaughter is another win for Justice Scalia — specifically, his dissent in Morrison v. Olson. True, the Court in Slaughter did not fully embrace the Morrison dissent (because not all aspects of it were presented in Slaughter). But Slaughter does embrace its central point: that Article II, Section 1’s vesting clause means that all of the executive power must be vested in the President and no executive power may be vested in someone independent of the President. It’s impossible to imagine Morrison coming out the way it did after Slaughter.
In my view this is exactly right, not because Scalia said it, but because the Constitution says what he said it says. If the executive power “shall be vested in [the] President,” that means that the executive power shall not be vested in anyone other than the President. Congress has power to create and define offices in support of the President’s executive power, but it cannot have power to alter the Constitution’s basic allocation of the executive power to the President (and, crucially, not to anyone else). Thus the President must be able to control all officers who exercise executive power, because the only way anyone other than the President can constitutionally exercise executive power is in subordination to the President.
Much has been written about early post-ratification history, which may or may not show some tension with the Court’s view in Slaughter. But I think the most that has been shown is that early Congresses sometimes deviated from the rule that appears on the face of the text. And I think that should not be enough, in an originalist analysis, to depart from the text. Early Congresses were not necessarily fully faithful to the Constitution, especially where enhancement of their own powers, or diminishment of the powers of other branches were concerned. And early interpreters did not necessarily treat them as such — Marbury, to take the most famous example, found that a provision of the 1789 Judiciary Act violated Article III.
A further originalist question is whether the vesting clause requires a different result in Trump v. Cook, regarding the Federal Reserve. I think a simple answer is available here too — somewhat different from what the Court said, but I think compatible with how Justice Scalia might have looked at the matter. Regardless of the original meaning, there is a lot of reliance on the independence of the Federal Reserve — the modern U.S. financial system is essentially premised on it. In this respect, the Federal Reserve is unique. No equivalent reliance arises from the purported independence of other agencies, such as the Federal Trade Commission (FTC) at issue in Slaughter. The FTC is just a regulatory agency, exercising regulatory functions equivalent to those exercised elsewhere by agencies fully controlled by the President. As a result, precedent calls for upholding the Federal Reserve’s structure in a way that it does not for other agencies.
RELATED: At Legal Theory Blog, Lawrence Solum comments: Constitutional Theory in Slaughter and Cook: The Roles of Originalism and Constitutional Pluralism. From the introduction:
… In this Legal Theory Blog post, I will be analyzing the role that constitutional theory played in each case on the basis of the evidence provided by the votes of and opinions written by the Justices. Even in a longish blog post, my analysis will necessarily simplify many complexities. Moreover, I am working fast—too fast for my own good. Undoubtedly there will be errors and omissions. Please accept my apologies in advance and my confession that I am simply not capable of getting everything right in a few hours given all of the complexities that attend an undertaking of this scope.
Two theories frame the analysis. Originalism holds that the meaning of the constitutional text was fixed when it was ratified and that this original meaning is binding on interpreters today; in its dominant form it locates that meaning in the communicative content of the text, established through evidence of founding-era usage and, secondarily, through early historical practice. Constitutional pluralism holds that constitutional questions are properly resolved by appeal to several distinct modalities of argument — text, historical practice, precedent, constitutional structure and values, and institutional capacities — with no one modality lexically prior to the others. The practical difference is decisive: because pluralism permits the modalities to be weighed against one another, and does not fix in advance which one governs, the choice of modality can determine the result, and for that reason, constitutional pluralists can reach opposing conclusions—even when they agree about the way each individual modality points.
Enough throat clearing. Let’s get to the substance!
Superficially, Roberts’s two majority opinions might be read as inconsistent in two ways. Doctrinally, Roberts reaches two different conclusions on the question whether Congress may insulate the heads of a multimember agency from at-will Presidential removal. And at the level of constitutional theory, it might appear that Roberts was an originalist in Slaughter but a constitutional pluralist in Cook. But surface appearances can be deceiving. And Chief Justice Roberts has eight colleagues, all of whose views must be considered in order to reach conclusions about the role of constitutional theory in Slaughter and Cook. This post will attempt to provide a preliminary assessment of the role that constitutional theory played in the removal cases by examining all nine Justices. The discussion will proceed Justice by Justice at the top level, with each Justice’s opinions in Slaughter and Cook analyzed for their constitutional theory content. …
Posted at 6:01 AM