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The President's Power to Execute the Laws

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The President's Power to Execute the Laws Article The President's Power To Execute the Laws Steven G. Calabresit and Saikrishna B. Prakash" CONTENTS I. M ETHODOLOGY ............................................ 550 A. The Primacy of the Constitutional Text ........................ 551 B. The Source of Confusion Regarding Originalisin ................. 556 C. More on Whose Original Understanding Counts and Why ........... 558 II. THE TEXTUAL CASE FOR A TRINITY OF POWERS AND OF PERSONNEL ...... 559 A. The ConstitutionalText: An Exclusive Trinity of Powers ............ 560 B. The Textual Case for Unenunterated Powers of Government Is Much Harder To Make than the Case for Unenumnerated Individual Rights .... 564 C. Three Types of Institutions and Personnel ...................... 566 D. Why the Constitutional Trinity Leads to a Strongly Unitary Executive ... 568 Associate Professor, Northwestern University School of Law. B.A.. Yale University, 1980, 1 D, Yale University, 1983. B.A., Stanford University. 1990; J.D.. Yale University, 1993. The authors arc very grateful for the many helpful comments and suggestions of Akhil Reed Amar. Perry Bechky. John Harrison, Gary Lawson. Lawrence Lessig, Michael W. McConnell. Thomas W. Merill. Geoffrey P. Miller. Henry P Monaghan. Alex Y.K. Oh,Michael J.Perry, Martin H. Redish. Peter L. Strauss. Cass R.Sunstein. Mary S Tyler, and Cornelius A. Vermeule. We particularly thank Larry Lessig and Cass Sunstein for graciously shanng with us numerous early drafts of their article. Finally. we wish to note that this Article is the synthesis of two separate manuscripts prepared by each of us in response to Professors Lessig and Sunstei. Professor Calabresi's manuscript developed the originalist textual arguments for the unitary Executive, and Mr Prakash's manuscript developed the pre- and post-ratification histoncal arguments. We are deeply grateful to Akhil Reed Amar for encouraging us to collaborate and to the editors of TieYale Law Journal for allowing us to present jointly our mutually reinforcing arguments for the unitary Executive here 542, The Yale Law Journal [Vol. 104: 541 III. THE TEXTUAL CASE FOR THE UNITARY EXECUTIVE .................... 570 A. The Vesting Clauses as Power Grants ......................... 570 1. The Analogy Between the Vesting Clauses of Article II and Article III ....................................... 570 2. The Plain Meanings of the Verbs "Vest" and "Extend" ........... 572 3. There Is No Implicit "Herein Granted" in Article iHs Vesting Clause ....................................... 574 4. Reading the Vesting Clause of Article I To Be a Power Grant Does Not Make the Rest of Article 11 Superfluous ............. 576 5. The Minimalist Plain Meaning of Executive Power ............ 579 B. The President's ConstitutionalGrant of the Executive Power Is Exclusive: It Is Not Concurrently Shared with the Congress ................. 581 C. The Take Care and the Opinions Clauses ...................... 582 D. The Militia Clauses and Execution ........................... 585 E. The Relevance of the Necessary and Proper Clause ............... 586 1. The Relevance of the Word "Proper"........................ 587 2. The Relevance of "Carrying into Execution"................... 588 3. There Is No Special Relationship Between the Take Care and the Necessary and Proper Clauses ..................... 589 4. The Real Purpose of the Clause .......................... 590 5. Creating Offices and Cabinet Departments .................. 592 F The President'sPower To Execute the Laws: Three Constitutionally Necessary Mechanisms To Control Inferior Executive Officers ........ 593 G. Summary of the Textual Argument of Parts H and III .............. 599 IV. SOME PRE-FRAMING HISTORICAL CONTEXT: THE CONTINENTAL CONGRESS' EXECUTIVE POWER ......................................... 599 V. THE PRE-RATIFICATION UNDERSTANDING OF THE PRESIDENT'S ROLE IN THE ADMINISTRATION OF FEDERAL LAW .......................... 603 A. The Executive Power Clause and the Administrative Power .......... 604 1. Political Theorists: Locke, Blackstone, and Montesquieu ........ 605 2. Evidence from State Constitutions ........................ 607 3. The PhiladelphiaConvention ............................ 607 4. The Public Ratification Debates .......................... 610 5. Lessig and Sunstein 's HistoricalArguments for Not Treating the Vesting Clause of Article II as a Vesting Clause ............ 612 6. Administration and the Chief Administrator ................. 614 B. The Take Care Clause ..................................... 616 1. The State Ratification Debates ........................... 617 2. The Public Debate Outside the Conventions ................. 618 3. The Limits of the Take Care Clause ........................ 620 19941 The President's Power C. The Necessary and Proper Clause ........................... 622 1. The Clause Is About Providing the Means To Effectuate Powers of the Three Branches ................................ 623 2. Limitations on the Use of the Clause ..................... 624 3. Prescient Warnings About the Possibilities of Abuse ............ 624 4. Are We Still Under the Articles of Confederation?.............. 625 D. The Opinions Clause, PrincipalOfficers, and Department Heads ...... 626 1. The Two Interpretationsof the Opinions Clause .............. 626 2. The Flaws of the Radical Reading ....................... 627 3. The Defects of the Less Radical Reading ................... 631 4. The True Meaning of the Clause ......................... 633 E. A Review of the Pre-Ratification Original Understanding of the Constitution ....................................... 635 VI. POST-RATIFICATION UNDERSTANDINGS OF THE PRESIDENT'S ADMINISTRATIVE ROLE ....................................... 635 A. Washington 's Administrative Understanding ..................... 637 1. The Chief Executive and Other Federal Executives ............ 637 2. The Federal Chief Executive and the State Executives .......... 639 B. A Conflicted Congress' Views Regarding PresidentialAdministration: Early Removal Debates .................................... 642 C. Administrative Practice Under Certain Statutes .................. 646 1. Was Treasury an Executive Department? ................... 647 2. Post Offices and the President ........................... 655 3. The ProsecutorialPower and the President .................. 658 D. Some Final Thoughts on Post-Ratification Views of the President:s Administrative Role ....................................... 661 VII. CONCLUSION ............................................. 663 Conventional wisdom insists that the Framers believed in a hierarchical executive branch, with the President in charge of all administration of the laws.... There is no historically sound reading of the Constitution that compels anything like [this] claim. Any faithful reader of history must conclude that the unitary executive, conceived in the foregoing way, is just myth.' Lawrence Lessig and Cass Sunstein 1. Lawrence Lessig & Cass R. Sunstein. The President and the Administration. 94 COLUM. L R-Ev. 1, 4 (1994) (emphasis added). The Yale Law Journal [Vol. 104: 541 If the Constitution has invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority. I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.' James Madison One of the oldest debates in American constitutional law has concerned the scope of Congress' alleged "power" to carve up the executive department of the federal government into minifiefdoms independent of presidential control. From the Decision of 1789 to the controversy over the Tenure in Office Act, down through recent Supreme Court opinions, Presidents, members of Congress, judges, and scholars have disagreed over whether Article II of the U.S. Constitution, as originally understood, creates a strongly "unitary" Executive. After two hundred years, no scholarly or judicial consensus has yet emerged on this vital question of the proper scope of presidential power. That such a question should remain unresolved for so long is in some ways quite odd. The claim made by unitary executivists that the Constitution creates only three branches of government and that the President must be able to control the execution of all federal laws is easily understood and resonates strongly with the very earliest lessons we learn about our constitutional system. In grade school, we are taught that our nation's laws are made by the Congress, executed by the President, and adjudicated in specific cases by the federal courts. By junior or senior high school, when we are first introduced to the constitutional text, we quickly learn that it vests certain legislative powers with the Congress, the executive power with the President, and the judicial power with the Supreme Court and inferior federal courts. At some point along the way, many of us put two and two together and conclude that the Congress' grants of legislative powers must enable it to legislate, the President's grant of the executive power must enable him to execute all federal laws, and the federal judiciary's grant of the judicial power must enable the federal courts to decide certain cases and controversies. It is thus perhaps a bit surprising to arrive at law school and discover that this "high school civics" conception of the separation of powers, particularly presidential control over execution of the laws, has for some
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