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05/03/2018

Ilan Wurman on Scalia's Morrison Dissent
Michael Ramsey

At The Hill, Ilan Wurman: On presidents v. special counsels, Justice Scalia got it right long ago.  Here is his textualist/originalist argument:

There are two relevant constitutional provisions, both elucidated by a debate in the First Congress in 1789. Congress was about to establish one of the nation’s first executive departments, the Department of Foreign Affairs, and the question was what power did the president have over the removal of the head of that department. There were three plausible positions: the power to remove was coincident with the power to appoint, and thereby required advice and consent of the Senate; Congress had the power to confer a unitary removal power at its discretion; or the president had such a power by virtue of the Constitution itself.

James Madison and the Federalists made principally two constitutional arguments in favor of the president’s constitutional power. First, the executive power is “vested” in the president of the United States, except where it was specifically qualified — for example, by the requirement for advice and consent for treaties and appointments. Because the power to superintend, control, and remove officers was an executive power not otherwise qualified by the Constitution, it belonged to the president alone.

But the more convincing constitutional provision was the president’s duty to “take care that the laws be faithfully executed.” As Madison argued, “If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.” Indeed, how can the president ensure that the laws be faithfully executed if he has no ability to remove officers he believes is acting inconsistently with what a faithful execution of the law requires?

These arguments persuaded the other representatives, who voted to delete language in the bill that appeared to confer the removal power at Congress’s discretion, in favor of the following provision: “whenever the said principal officer() shall be removed by the President.” The implication, the author of the amendment explained, was a legislative “declaration of our sentiments upon the meaning of a Constitutional grant of power to the President.”

This decision has become known as the “Decision of 1789,” and stands for the proposition that the president has a unitary authority by virtue of the Constitution to remove executive officers.

The article is not a direct response to the post by Jed Shugerman noted here earlier in the week, but the two make a nice point/counterpoint.

I basically agree with Wurman, but with this quibble.  I don't think the take care clause grants the President any power.  Rather, it imposes a duty.  True, it implies that the President must have some power to enforce the law (from some other source), or the clause would be pointless.  But does not grant this power, and it certainly does not mean the President must have all powers necessary to enforce the law.  The clause requires that the President act to the extent of his powers to enforce the law, but it does not expand the extent of those powers.  As the post indicates, the other plausible source of the President's power to enforce the law is the executive vesting clause of Article II, Sec. 1, and I agree that is the right source (based on the original meaning of "executive Power").  The take care clause confirms this reading, because otherwise the President would not have power to take care that the laws are faithfully executed.

Thus the argument on the special counsel is not that without power to control the special counsel the President cannot take care that the laws are faithfully executed.  The President's take-care duty extends only to the extent of his power, and if he lacks power over the special counsel, then his duty extends no further.  Instead, as Scalia explained in his Morrison dissent, the argument is that without power to control the special counsel, the President does not fully possess the executive power, which the Constitution says he "shall" have.