The President's power to execute the laws.

• Author: Calabresi, Steven G.
• Position: Response to Lawrence Lessig and Cass R. Sunstein, Columbia Law Review, vol. 94, p. 1, 1994

CONTENTS

1. METHODOLOGY 550 A. The Primacy of the Constitutional Text 551 B. The Source of Confusion Regarding Originalism 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 Constitutional Text: An Exclusive Trinity of Powers 560 B. The Textual Case for Unenumerated Powers of Government Is Much Harder To Make than the Case for Unenumerated Individual Rights 564 C. Three Types of Institutions and Personnel 566 D. Why the Constitutional Trinity Leads to a Strongly Unitary Executive 568 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 II's Vesting Clause 574 4. Reading the Vesting Clause of Article II To Be a Power Grant Does Not Make the Rest of Article II Superfluous 576 5. The Minimalist Plain Meaning of Executive Power 579 B. The President's Constitutional Grant 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's Power To Execute the Laws: Three Constitutionally Necessary Mechanisms To Control Inferior Executive Officers 593 G. Summary of the Textual Argument of Parts II 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 Philadelphia Convention 607 4. The Public Ratification Debates 610 5. Lessig and Sunstein's Historical Arguments 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 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, Principal Officers, and Department Heads 626 1. The Two Interpretations of 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 Presidential Administration: 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 Prosecutorial Power 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.(1)

   Lawrence Lessig and Cass Sunstein

   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.(2)

   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 Presient'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 a that this "high school civics" conception of the separation of powers, particularly presidential control over execution of the laws, has for some time now been out of favor. The modern academic debate about presidential power to execute the laws began promisingly in 1984 with a leading article by Professor Peter Strauss, who argued thoughtfully for the constitutionality of some agency "independence," while recognizing that the President had to retain at least minimal powers of control over all federal law execution.(3) Over the next few years, a number of prominent scholars, led by Professors Geoffrey Miller and Stephen Carter, weighed in forcefully on the unitary exectivist side, arguing in favor of full presidential control of all execution of the laws.(4) These unitary executivist scholars were followed by scholars arguing that the President need not have any control over at least some law-execution activities.(5) Recently, the weight of academic opinion has shifted back to the theory of the unitary Executive.(6)

   The most recent contribution to this growing body of scholarship is The President and the Administration,(7) a seminal article by Professors Lawrence Lessig and Cass Sunstein. They conclude that, notwithstanding its many academic advocates and its firm textual foundations, the theory that the Framers of our Constitution meant to create a strongly unitary Executive is "just plain myth." According to Lessig and Sunstein, the theory

   is a creation of the twentieth century, not the eighteenth. It derives

   from twentieth century categories applied unreflectively to an

   eighteenth century document. It ignores strong evidence that the

   framers imagined not a clear executive hierarchy with the President

   at the summit, but a large degree of congressional power to structure

   the administration as it thought proper.(8)

   Thus, Lessig and Sunstein say the originalist case for a unitary Executive is fanciful and that executive unitarianness may only be compelled today because "changed circumstances since the eighteenth century"(9) have led to a mutation in the original design. Those who wish to be "faithful to the framers' constitutional design"(10) must either reject the unitary Executive or give up the originalist banner. All originalists who are also unitarians(11) are thus politely shown to be in need of a refresher course in American legal history.

   We disagree. We feel compelled to revisit this question to respond to the many interesting issues raised by Lessig and Sunstein's provocative debate is informative and valuable, we find it unpersuasive because we believe it focuses far too much on what they think the Framers must have "imagined,"(12) while overlooking the original meaning of the words of the constitutional text that the Framers actually wrote.

   To the extent that Lessig and Sunstein wish to advance an originalist constitutional argument, we believe that their piece is methodologically flawed. Lessig and Sunstein err, in our view, because they give dispositive weight to an incomplete rendition of the relevant history over the legal text itself. Thus, this Article's first project is to demonstrate that their arguments against the theory of the unitary Executive should fail to persuade anyone who considers herself an originalist (or a textualist).(13)

   Just as critically, we also believe that Lessig and Sunstein have failed to place the Article II debate in its proper historical context. In...