Guest Post: The Unitary Executive: Presidential Control, not Removal
a guest post from Professor Michael B. Rappaport
In the oral argument in Trump v. Slaughter, the justices who appeared to support the unitary executive seemed to view it as requiring that the President be able to remove executive officers, or at least principal executive officers. But while I maintain the Constitution’s original meaning establishes a unitary executive, I believe it takes a different form. Under this view, the Constitution requires that the President be able to control or direct – through various means – the executive power of the United States. One means of such control is plenary removal authority, but there are alternative means that would satisfy the Constitution.
In my opinion, this theory has better support in the text and history than the removal view. It also avoids holding unconstitutional significant aspects of existing government institutions, such as the civil service and administrative law judges. My views on this matter are similar to, although distinct from, those of John Harrison and Gary Lawson. But I have been attracted to this theory ever since I first read a version of it defended by Lee Liberman Otis in 1989.
The Presidential Control Theory
The presidential control view derives more easily from the constitutional text than the removal view. The key clause here is the Vesting Clause, which states that “the executive power shall be vested in a President.” This clause strongly suggests that the President must be able to control the executive. If an executive officer could make decisions without being subject to presidential control, as with the heads of independent agencies, then it is hard to see how the executive power would be vested in the President.
The Constitution, of course, does provide for other executive officials. But such officials are best understood as the President’s assistants, since no person could undertake all of the executive tasks by himself. These assistants can take executive actions but must be subject to presidential direction.
The argument for the constitutionality of independent agencies, with the power to ignore presidential directives, would be stronger if the Constitution had provided, like it did with the inferior federal courts, that the executive power is vested in the President and in such executive officials established by Congress. But the Constitution said nothing of the kind.
In contrast to a power of control, the removal power is harder to find in the constitutional text. The Vesting Clause itself does not speak directly of removal. The best argument for removal authority is that it derives from the residual theory of executive power. Under this view, the vesting of executive powers confers all powers that would have been regarded as executive except those granted to Congress (such as the power to declare war) or restricted in the Constitution (such as the treaty power, which was subject to senatorial consent). The residual theory is how many people justify a presidential foreign affairs power.
But the power to regulate removal was probably assigned elsewhere. The Constitution, through the Necessary and Proper Clause (and the Appointments Clause), provides Congress with the authority to define the powers and limits of executive offices. The definition of an office would include the power not only to establish the duration and authority of the office, but also the means and circumstances for removing the officer. If Congress has the authority to regulate removal, then the President does not have removal authority under the residual theory.
Another candidate for justifying the removal power is the Take Care Clause. But I am skeptical that this Clause yields the removal power. There is a strong argument that the Clause merely imposes a duty on the President to use his powers to ensure that the law is faithfully executed. This duty prohibits the President from ignoring the law, as the Kings of England sought to do with the suspending and dispensing powers. The President also cannot ignore failures to enforce the law by his subordinates. He must make efforts to uncover such failures. But those presidential obligations do not necessarily mean he has the authority to remove these subordinates if Congress has not provided that authority.
Moreover, even if the Take Care Clause did provide the President with authority to ensure that the laws are being executed properly, that goal is as easily, if not better, implemented with the power of control rather than removal. If an official is not enforcing the law, the President can take care by directing that official to reverse course and properly enforce the law.
To be clear, the Take Care Clause is not irrelevant to the President’s control over the executive branch. But instead of viewing it as the source of the President’s authority to direct or remove, I see it as a complement to the President’s control under the Vesting Clause. Given that the President has the power to control, it makes sense that he would be required to exercise that power to ensure that the law is faithfully followed.
Implementing the President’s Power to Control
While the Constitution requires that the President have control over the executive, a key question is what institutional mechanisms are adequate to protect such control. The answer to this turns principally on the relationship between two clauses. While the Vesting Clause requires presidential control, the Necessary and Proper Clause allows Congress to decide how to structure the executive branch, so long as Congress respects the requirement of presidential control.
One method of ensuring presidential control is plenary removal authority. This, of course, is the method that the removal view sees as key to the unitary executive. Plenary removal authority is also relevant to the control view. Since plenary removal authority was used prominently and extensively at the time of the Constitution’s enactment, it strongly suggests that such removal authority provides sufficient control to the President. Thus, if another mechanism provides a comparable degree of control, then it is very likely to be constitutional as well.
While removal is an effective means of control, it is certainly not a perfect one. It does eliminate someone who the President believes is not enforcing the laws as he desires. It also provides officials with a here and now incentive to follow the President’s directions. But plenary removal authority is still limited. It does not require the subordinate official to follow the President’s direction nor give the President the power to reverse the subordinate’s decision.
Consequently, to exercise control the President might have to remove the official, which he may not want to do for political reasons. Moreover, even if he does remove the official, the decision the President wants taken or reversed will not occur until a new official is in place and takes that action. And, of course, in the meantime a decision to act or not act may lead to an irrevocable result.
Given that removal does not ensure perfect control, one should not expect alternative methods of control to be perfect either. Moreover, the degree of control that is necessary for an agency to be constitutional will turn on the circumstances. In particular, the necessary mechanisms will differ for a principal officer like a cabinet secretary than for inferior officers or employees, such as the civil service.
It is not possible to draw a clear line in a short essay like this one. Instead, I will provide two methods of control under which principal officers, such as cabinet secretaries or commissioners, would be constitutional without being subject to plenary removal by the President. One method involves presidential authority to give binding orders to the principal officer, backed up by removal for failure to follow those orders. Another involves presidential authority to take binding actions for the agency. Both methods employ a presidential power to direct principal officers, including the power to require the principal officer to secure the President’s consent before taking any action. After discussing these two methods, I then argue that different methods of control are sufficient for inferior officers and employees.
One method of control that does not involve plenary removal authority authorizes the President to give binding orders to the principal officer (and anyone else in the agency). The President would have authority not only to require the principal officer to take actions, but to prevent that officer from taking actions without the President’s consent. In addition, since the President can only control the agency through subordinate officers, it is also necessary that the principal officer not be someone appointed by his political opponent. Thus, this method requires that a new President be able, at the beginning of his term only, to freely dismiss principal officers appointed by the prior administration.
Failure of the principal officer to follow the President’s directions would be grounds for removal. Such removal would only occur after judicial review. But a strong argument can be made that lengthy judicial review – or hostility towards the President from district judges – would interfere with the President’s ability to control the agency. To guard against this possibility, the law should provide for expedited review and for removal of the officer during the pendency of the lawsuit unless it is clear that the officer did not disobey an order he could have reasonably followed.
Another method of control that does not involve plenary removal authority allows the President both to exercise the powers of the principal officer and to give binding orders to that officer. Under this method, the President can order the principal officer to not take any actions without the President’s prior consent. Actions by the principal officer taken without consent would then be void. Moreover, the President could take whatever actions the principal officer could take, including supervising officers and employees in the agency. The President should also be able to remove more senior officers in the agency (other than the principal officer) for failure to follow his orders under a similar judicial review arrangement as discussed above.
While this method places a burden on the President to supervise the agency and possibly to take agency actions, it still gives him control of the agency. And these burdens are not dissimilar to those incurred under plenary removal authority. Under plenary removal authority, the President also must supervise the agency, and he may have to remove and then replace the official.
Inferior Officers: ALJs and the Civil Service
While these mechanisms are needed for control of principal officers, less powerful mechanisms are sufficient for inferior officers and employees. Inferior officers have much less and narrower authority than principal officers, and their duties can often be reallocated to allow for greater control by superiors. The cases of administrative law judges (ALJs) and the civil service are illustrative.
ALJs are typically not removable except for cause. This for cause removal provision conflicts with the removal view of the unitary executive that the Supreme Court appears to have embraced, leading observers to wonder how the Supreme Court will decide the constitutionality of ALJ for cause removal.
But there is no conflict under the presidential control view. In the typical arrangement, the head of the agency (who would be subject to presidential control under the control theory) has adequate means to control the ALJs. First, the ALJ’s decision is typically subject to review by the head of the agency. Second, the agency has the authority to bypass the ALJ and to hear the case initially. These agency powers are sufficient to ensure control for the President (with a minor exception not worth mentioning).
The civil service system is also largely constitutional under the presidential control theory. While this is a big topic, certain general points suggest that much, if not all, of the system permits sufficient presidential control. First, the decisions of the civil service are generally subject to direction by agency officials who are subject to removal by or direction from the President. Second, if civil service employees do not follow the direction of superiors, they are subject to sanction or removal. Third, while such sanctions or removals are being adjudicated, agency officials – if they do not trust these civil service employees – can generally require them to secure the approval of their superiors before taking binding action. Moreover, agency officials normally can allocate the responsibilities of these untrusted civil service employees to minimize the harm they can cause.
The Non-Redundancy of the Opinions Clause
One argument against the unitary executive, and especially against the control approach, is that it would render the Opinions Clause redundant. After all, if the President can direct the executive branch, then why is a clause needed allowing the President to request the opinion in writing of the principal officer in each executive department? But as I have argued previously, there are at least two functions for the Opinions Clause under the unitary executive view that derive from the Constitution’s abandonment of the traditional role of executive councils. First, if the President lacks an executive council, the Opinions Clause answers a question that would naturally arise: how can President’s secure information without such a council? Second, the Clause also prohibits Congress from establishing an executive council and mandating that the President secure nonbinding advice from the council – an arrangement that existed in many of the states prior to the Constitution.
Conclusion
In sum, the unitary executive need not be based on the removal view. Instead, it is better rooted in the control theory, which has a stronger grounding in the text and allows many features of our current arrangements to be maintained. While I lack space in this short essay to discuss it, the control theory also has great power to account for many of the “so called” counterexamples to the unitary executive that have been identified, including the Sinking Fund Commission and the Mint Commission.
