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02/08/2018

John McGinnis on Firing the Special Prosecutor
Michael Ramsey

At Liberty Law Blog, John McGinnis: Congress Should Not Insulate Robert Mueller from Removal (responding to this New York Times op-ed by Eric Posner).  Here is the constitutional argument:

I know Bob Mueller from my days at the Justice Department. I thought he was an upstanding head of the criminal division. I certainly do not believe the President should fire him. Nevertheless, I oppose any congressional statute that would insulate him from removal. It is unconstitutional.

In [Sunday's] New York Times, Eric Posner makes the case for such a provision. But his arguments for constitutionality are weak as a matter of originalism and his policy arguments betray a partisan failure of memory. His leading constitutional argument is as follows:

James Madison never argued for a complete separation of powers; he believed that the powers needed to be partly mixed so that the branches could restrain one another. That’s why the president has, for example, the veto, a legislative power since it influences legislation.

Indeed, the Constitution expressly gives some of the traditional executive powers to the Senate, like the power to make treaties, which had been the executive’s alone, just as it gives some of the legislative power to the President in the form of the veto. But these express, specific exceptions count against creating other exceptions to the traditional powers of the branches, because of the usual rule of textual interpretation: Expressio unius est exclusio alterius (when one or more things of a class are expressly mentioned others of the same class are excluded). And at the time of the Framing prosecution was the quintessential executive power and thus given wholly to the President under Article I. [Ed.: I assume he means Article II].

Posner then argues that since Congress has the power to create offices, it can insulate officers from removal under the Necessary and Proper Clause. But that begs the question of what is proper and the interpretation offered above suggests it is not proper. Or does Posner believe that Congress should be able to use it power under the clause to insulate the Attorney General and other cabinet officers from removal?

Posner finally argues that the President did not control officeholders in the early republic. As my colleague, Steve Calabresi, and Sai Prakash have shown, this is simply not true. And in fact all the early Presidents claimed power to control subordinates within the executive branch, because that authority too was at core of traditional executive power at the time of the Framing.

Agreed as to the original meaning, though this assumes Morrison v. Olson is wrong and Scalia's dissent in that case is right.  That in turn raises an interesting question: should a member of Congress vote against statutory protection for the special prosecutor on this ground?  The member is bound to follow the Constitution, but the Supreme Court has said (erroneously as a matter of original meaning, let's assume) that a special prosecutor can be given statutory protection.  To what does the member owe an obligation, the original meaning or the Court's interpretation?  Or, put another way, to what extent does non-originalist precedent change a member's obligation to the original meaning?

RELATED (from a couple of weeks ago): Victoria Nourse argues that Article II, Section 1 is ambiguous because it says "The executive Power shall be vested in a President of the United States" but does not say "The executive Power shall only be vested in a President of the United States."