We left off the last post by asking why Professor Prakash refuses to acknowledge the connection between the “creeping constitutional coup” of executive power, which he warns against in The Living Presidency and elsewhere, and the theory of the unitary executive which he has promoted for his entire career.
Part of the problem, I think, is that unitary executive theory has an extremely tenuous foundation in constitutional text. The Constitution is quite specific about how officers of the United States are to be appointed, but it says nothing about their removal except that civil officers may be removed upon impeachment and conviction. U.S.Const., art. II, § 4. It also says little about the president’s relationship to officers once they are appointed. His relationship to military officers may to some extent be inferred by the fact he is designated as commander in chief. U.S. Const., art. II, § 2, cl. 1. With regard to civil officers, however, the most specific provisions are (1) “he shall take care that the Laws be faithfully executed” (U.S. Const., art. II, § 3); and (2) “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices” (U.S. Const., art. II, § 2, cl. 1). The first of these implies some power in the president to ensure faithful execution, but it does not imply that the president has the power to control, direct or remove officers who are faithfully executing the law. The second suggests that the president lacks a general power of direction and control, even as to heads of the executive departments, because otherwise it would be unnecessary to specify this extremely limited power.
Because these provisions are of limited help to their cause, unitarians place most of their reliance on the first sentence of Article II, which provides that “[t]he executive Power shall be vested in a President of the United States.” U.S. Const, art. II, § 1, cl. 1. They claim that this sentence, known as the Vesting Clause, means that the president alone must control all exercises of “the executive power,” which in the view of many (but not all) unitarians includes the power to remove executive officers. Prakash summarizes the unitary executive position as follows:
Summing up, the unitary-executive thesis has four principles: (1) The Article I Vesting Clause does what it says. It bestows a power—the executive power. (2) That executive power has several strands, not all of which are specified or referenced in the Constitution; (3) Among those strands are the power to execute the law and the authority to direct and fire executive officers. (4) Congress lacks constitutional power to abridge or abrogate the executive power, for it lacks a generic power to regulate the constitutional powers of other branches.
Too Unitary, 135 Yale L.J.F. at 544-45.
Whether or not Prakash’s theory is “correct,” it is extremely controversial. For one thing, it is not at all obvious that the Vesting Clause has the meaning Prakash ascribes to it. Some argue that it is a mere “designation” clause that introduces the subject of Article II (just as Articles I and III have similar introductory sentences) but that the substantive content of the president’s powers must be found in the more specific provisions elsewhere in Article II. See Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169, 1178-79 (2019) (terming this the “Cross-Reference theory”); Robert G. Natelson, The Original Meaning of the Constitution’s “Executive Vesting Clause”—Evidence from Eighteenth-Century Drafting Practice, 31 Whittier L. Rev. 1 (2009) (laying out the case that the Vesting Clause is a designation clause). Others argue that the Vesting Clause does not incorporate “several strands” of power unenumerated in the Constitution but refers only to the power to execute the laws, a power which is dependent on the content of laws passed by Congress. See Mortenson, 119 Colum. L. Rev. at 1180, 1230-43 (arguing for this theory). Finally, even if one accepts that the Vesting Clause incorporates certain unenumerated powers determined to be “executive” in nature, that still leaves the problem of identifying those powers and applying them in the context of our constitutional system. See, e.g., Daniel D. Birk, Interrogating the Historical Basis for a Unitary Executive, 73 Stan. L. Rev. 175, 182 (2021) (“there is no evidence to support the assertion that the removal of executive officers was a branch of the royal prerogative or that a general removal power was an inherent attribute of the ‘executive power’ as it was understood in England.”). Continue reading “The Unitary Executive (Part 2): A Tenuous Theory”