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Claremont Review of Books
"A praiseworthy exercise."--Michael M. Uhlmann, Claremont Review of Books
— Michael M. Uhlmann
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This book is the first to undertake a detailed historical and legal examination of presidential power and the theory of the unitary executive. This theory—that the Constitution gives the president the power to remove and control all policy-making subordinates in the executive branch—has been the subject of heated debate since the Reagan years. To determine whether the Constitution creates a strongly unitary executive, Steven G. Calabresi and Christopher S. Yoo look at the actual practice of all forty-three presidential administrations, from George Washington to George W. Bush. They argue that all presidents have been committed proponents of the theory of the unitary executive, and they explore the meaning and implications of this finding.
"A praiseworthy exercise."--Michael M. Uhlmann, Claremont Review of Books
— Michael M. Uhlmann
One of the oldest and most venerable debates in U.S. constitutional law concerns the scope of the president's power to remove subordinates in the executive branch or to direct their actions. This debate over whether to have a unitary executive arose during the Philadelphia Convention that drafted the Constitution, and it flared into a huge public controversy in the so-called Decision of 1789 during the First Congress. Proponents of presidential power argued then and argue now that the Constitution gives and ought to give all of the executive power to one, and only one, person: the president of the United States. According to this view, the Constitution creates a unitary executive to ensure energetic enforcement of the law and to promote accountability by making it crystal clear who is to blame for maladministration. The Constitution's creation of a unitary executive eliminates conflicts in law enforcement and regulatory policy by ensuring that all of the cabinet departments and agencies that make up the federal government will execute the law in a consistent manner and in accordance with thepresident's wishes. As a matter of constitutional law, the theory of the unitary executive holds that the Vesting Clause of Article II, which provides that "the executive Power shall be vested in a President of the United States of America," is a grant to the president of all of the executive power, which includes the power to remove and direct all lower-level executive officials. The president is thus not only the commander in chief of the military, but also the law enforcement officer in chief of the federal government. The president's powers go beyond those specifically enumerated in Article II, Sections 2 and 3, and include at least some implied, residual executive powers, like the removal power, as well.
This book shows that all of our nation's presidents have believed in the theory of the unitary executive. Big fights about whether the Constitution grants the president the removal power have erupted frequently, but each time the president in power has claimed that the Constitution gives the president power to remove and direct subordinates in the executive branch. And each time the president has prevailed, and Congress has backed down. The Constitution gives presidents the power to control their subordinates by vesting all of the executive power in one, and only one, person: the president of the United States. All subordinate nonlegislative and nonjudicial officials exercise executive power, and they do so only by implicit or explicit delegation from the president. They are thus all subject to the president's powers of direction and control. The truth of this observation has been acknowledged not only by our greatest presidents, but also by their least distinguished brethren. We show here that all forty-three presidents have consistently adhered to a practice of construing the Constitution as creating a unitary executive and giving them the removal power over the past 218 years. Under this practice, congressional efforts to insulate executive branch subordinates from presidential control by creating independent agencies and counsels are in essence unconstitutional.
Why should such a consistent presidential practice matter? Because a foundational principle of law is that to some degree what the law is on the books is determined by what it actually is in practice. The presidential interpretation of Article II as a grant to the president of the removal power and the power to direct executive branch subordinates is an interpretation that is long settled and followed in the executive branch. Congress has from time to time tried to unsettle this interpretation, but our book demonstrates that Congress's efforts in this regard have always failed. That does not mean Congress will not try again in the future to insulate subordinate executive officials from presidential powers of command and control. It does mean that Congress's efforts in this direction should and will, in our judgment, fail.
A decade ago, during the Monica Lewinsky imbroglio, the importance of the unitary executive debate was obvious. Today, in contrast, with the independent counsel law dead and gone, it is easy to dismiss the debate over the removal power as being of little consequence. Looking at this issue historically, however, we think it is striking that at least four presidencies have been consumed and nearly ruined by controversies over the removal power. For this reason, we offer case studies in this book on four substantial contests between presidents and Congresses over the removal power.
Our first case study is of Andrew Jackson, who was actually censured by the Senate in the 1830s for his removal of Treasury Secretary William Duane during the controversy that led to the abolition of the second Bank of the United States. Jackson took the debate over his removal of Duane to the people, and he ultimately succeeded in having his censure expunged from the records of the Senate, thereby saving his presidency and his historical reputation. Debate about the scope of the president's removal power was thus absolutely central to the success of Andrew Jackson's transformative presidency.
Jackson's experience was not idiosyncratic. Thirty years later, in the 1860s, President Andrew Johnson was impeached by the House of Representatives for removing Secretary of War Edwin Stanton in violation of the Tenure of Office Act, a statute that purported to require senatorial consent for removals to be effective. Here again, Johnson's acquittal by one vote in the Senate saved his presidency and to some degree his historical reputation. Once again, debate about the scope of the removal power was absolutely central to the success or failure of a presidency and to the discrediting of impeachment as a way of reining presidents in.
The twentieth century also offers examples of presidencies that nearly foundered on the shoals of a debate about the scope of the removal power. In the 1930s, for example, Franklin Delano Roosevelt put the full weight of his presidency behind the report of the Brownlow Commission, which called for the abolition of the independent agencies within the federal government. The failure of FDR's proposal to reorganize the executive branch, together with the controversy surrounding his court-packing plan, were devastating blows to his otherwise highly successful presidency. FDR only fully recovered from these two debacles with the advent of World War II, as public attention turned away from domestic affairs and toward foreign policy. Again, a debate over the removal power badly damaged the popularity of one of our greatest presidents.
In the 1980s and 1990s, Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton were all plagued by independent counsel investigations, most notably those led by Lawrence Walsh and Ken Starr, both of whom could only be removed for cause. For these three presidents, too, debates about the actions of an essentially unremovable subordinate nearly ruined their presidencies and their historical reputations, and the debates culminated in the impeachment of President Clinton. In the wake of the Clinton impeachment, the independent counsel law was allowed to sunset out of existence in 1999, much as the Tenure of Office Act had been repealed in 1887 some twenty years after its initial adoption. Debates about the scope of the removal power proved absolutely central to the success of all three presidents.
The fact of the matter is that the debates over the removal power were of central importance to at least the six presidencies mentioned above. Other presidents, including Grover Cleveland and George W. Bush, had major battles with Congress over the removal power. The issue of the scope of the president's removal power may be dormant now that the independent counsel law has lapsed, but an issue that has come up so regularly throughout our nation's history-from the congressional debate during the First Congress over the president's power to remove cabinet secretaries to the debate over removal of officials in the Department of Homeland Security in 2002 and the removal of U.S. attorneys in 2006-is an issue that will assuredly come up again. The removal power debate is, if you will, a fault line between the tectonic plates represented by the presidency and Congress. Additional friction along this fault line in the future is all but guaranteed.
Another reason the removal power debate warrants book-length treatment is because, even with the repeal of the independent counsel law, there are still some important independent agencies and entities in the government, including the Federal Reserve Board, the Federal Communications Commission, the Securities and Exchange Commission, and the Federal Trade Commission. While presidents can and usually do succeed in dominating these agencies even without having the power to remove their officials, it is surely of more than academic interest whether incoming presidents can legally fire holdover governors of the Federal Reserve Board or commissioners of the FCC, SEC, or FTC and to what extent presidents can determine the policies pursued by these agencies. These entities exercise a great deal of delegated power, and it really matters in the real world how much presidents can control and be held accountable for the decisions of the independent agencies. For example, many a president has tried to hide behind the chairman of his Federal Reserve Board and imply that the president is largely without power to affect monetary policy. We find this lack of accountability unfortunate and hope that our book will prevent future presidents from being able to hide in that way.
But most important of all, we think the debate over the removal power warrants our book-length treatment because, as Gerald Frug has pointed out in his pathbreaking article on civil service reform, one of the biggest issues of our time is how to establish better control over big, unresponsive government bureaucracies. Ever since the successes of the New Deal and the Great Society, our government workforce has expanded enormously. One constant complaint has been about the alleged incompetence of government bureaucrats. It is not uncommon for top government policymakers to have to deal even with cabinet secretaries who perform poorly on the job.
The removal power debate directly concerns whether policymaking subordinates and even civil service subordinates of the president can be fired because of a policy disagreement or for incompetence without a full trial at law. We believe this is not a liberal or a conservative issue, but rather one of good government. Presidents need the power to fire subordinates when they disagree with them on policy grounds or when they are incompetent, and this book shows that, contrary to popular myth, presidents did have that authority until such 1970s Supreme Court opinions as Arnett v. Kennedy. Presidents cannot, of course, fire subordinates for unconstitutional reasons, such as race or religion, or for whistle-blowing activities. But presidential firing of executive branch subordinates because of policy disagreements or incompetence ought to be much easier than it is in many cases today.
Broader presidential removal power would not, contrary to what one might fear, lead to a reemergence of the spoils system for filling federal executive offices that dominated the nineteenth century. Beginning with the Pendleton Act of 1883, the key move in abolishing the spoils system was the institution of merit-based exams as a requirement for hiring new members of the civil service. We fully support such merit-based hiring criteria and note that presidents have little incentive to fire carryover civil servants if presidents are unable to fill those jobs with dedicated loyalists from their own presidential campaigns. That is why the institution of merit-based hiring beginning in 1883 ended the spoils system even though broad limits on presidential power to remove civil servants did not emerge until the 1970s. Another reason, then, why the removal debate is important is that if presidential removal power is extended from policymaking jobs to civil service jobs, it will make the federal bureaucracy more efficient and effective. As Frug claims, this may be one of the most important issues of our time, given the significant role that big, unresponsive government bureaucracies play in modern life.
Clearly the removal power is only one among many factors that affect presidential control over executive branch officials. Presidential popularity, support in Congress, and skill in picking initial appointees all affect the degree to which presidents are able to command the loyalty of their initial subordinates. Moreover, the removal power was not used very often during the Reagan and Clinton years. At times, it even seemed that presidential appointees in independent agencies were more committed to the administration's policy program than were the president's own cabinet secretaries.
While it is certainly true that presidential control over the executive branch is a complex phenomenon, this book seeks to show that it would be a great mistake to underestimate the importance of the removal power. Like the veto power or the war power, the removal power does not need to be exercised often to be effective. An early firing or two and a conviction that the president is willing to fire again are all that is needed for the removal power to serve as an effective restraint on insubordinate employees. The removal power, like the power to issue binding orders to executive branch subordinates, is a potentially powerful tool of executive branch unitariness.
The removal power is probably most formidable when the president's party also controls a majority in the Senate. Without such a majority, presidential removals can become politically costly if presidents who fire subordinates must endure hostile senatorial scrutiny of their replacements. Concerns of this kind may well explain why President Clinton retained Janet Reno as his attorney general for so long, even though press reports suggested that he had wanted to replace her for quite some time. Similar reasons may explain President George W. Bush's retention of Attorney General Alberto Gonzales until his resignation in September 2007. Thus, observers accustomed to the period between 1969 and 2003, during which opposing parties tended to control the White House and the Senate, may well underestimate the importance of the removal power. It is a potent weapon at all times, and undoubtedly even more so when the executive and legislative branches of government are not divided.
In developing our argument that presidents have always appreciated the vital importance of the removal power, we intend to set the stage for several legal claims that presidents may want to make in resisting congressional efforts to curtail either the removal power or the parallel presidential power to issue binding orders to executive branch subordinates. First, as we explain in greater depth in the remaining sections of this introductory part of the book, we believe that presidential nonacquiescence to congressional claims of power to create independent entities in the executive branch renders congressional historical practice irrelevant as a guidepost to constitutional interpretation. Thus, the Supreme Court should decide removal cases in future litigation with reference to the text and structure of the Constitution and the executive branch practice, because the congressional practice under the Constitution has never been accepted by the president. We believe this clearly means the Supreme Court should recognize what we have described as a strongly unitary executive.
Second, we believe that President George W. Bush and all future presidents should recognize the existence of a strong, internal, executive branch precedent, established over the entire history of our republic, whereby all forty-three presidents have always resisted serious incursions on the principle of the unitary executive. For this reason, President Clinton was right to let the independent counsel law expire without his support in June 1999, and President George W. Bush was right to insist on broad removal power over the newly created Department of Homeland Security. Future presidents should veto statutes presented to them that infringe upon the unitariness of the executive, and they should enforce such statutes as are already on the books with the greatest circumspection.
Excerpted from The Unitary Executive by STEVEN G. CALABRESI CHRISTOPHER S. YOO Copyright © 2008 by Yale University. Excerpted by permission.
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Posted June 2, 2009
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