Monday, May 18, 2020

Inspector General Firings Highlight the Danger of the Unitary Executive Theory

by Michael C. Dorf

During the oral argument last week in Trump v. Vance, the President's attorney, Jay Sekulow, rested part of his case on the assertion that the President "is himself a branch of government. He is the only individual that is a branch of government in our federal system." Sekulow meant thereby to invoke the so-called unitary executive theory.

The textual root of the theory comprises the first sentence of Article II: "The executive power shall be vested in a President of the United States of America." You see?, say the unitary executive theorists. All executive power is vested in the President. From that proposition, unitary executive theorists derive various further ones, such as the one for which Sekulow was arguing--that the President should be immune from a state grand jury subpoena, which could distract said entire branch of government from his/its vital work.

It's easy and completely appropriate to ridicule Sekulow's answer with respect to the current President, who seems to spend most of his waking hours watching cable news, Tweeting, and holding extensive press conferences to praise himself, insult the press, and spread lies. On one hand, it's hard to imagine that the President could be more distracted from his job; on the other hand, given the terrible things he does when he actually does the job, it might be good if he were even more distracted.

However, Sekulow's argument would apply to all future Presidents, not just the current one. And as I acknowledged in one of my DoL essays last week, the Vance oral argument and the companion argument in Trump v. Mazars raise real questions about the risks that state grand jury proceedings or excessive congressional inquiries could undercut a normal President's ability to do the job.

Yet while courts and other actors should be sensitive to the dangers of excessive interference with the President and the executive branch, the unitary executive theory is not the right vehicle for expressing that sensitivity. It is dubious in principle and affirmatively dangerous these days--as Trump's firing of State Department Inspector General Steve A. Linick on Friday illustrates.

Before coming to the Linick firing, I want to offer a few thoughts about the unitary executive theory. First and foremost, it's a theory--not in the way that evolution or the Big Bang is a theory, of course, but in the way that originalism, Living Constitutionalism, and Law & Economics are theories. That is, the unitary executive is a prescriptive interpretive theory. Yes, its most vociferous proponents sometimes write or talk as though they are simply reporting the content of the Constitution, but given the normative stakes and the contested nature of the claims, that should not obscure what's really going on. Someone who subscribes to the unitary executive theory is making some combination of claims about the original public meaning of the words of the Constitution, the intentions and expectations of its framers and ratifiers, the ways in which the Constitution has been understood over time, and the best way for the branches to interact. A blog post is not the place to evaluate all such claims, so I'll confine myself to text and precedent.

Although the first sentence of Article II does indeed vest "The executive power" in the President, Sekulow's claim that the President is the branch is preposterous. Article II contains other provisions, including one stating that the President "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." Article II thus assumes that there will be whole departments in the executive branch, headed by "principal officers" and staffed by (as another clause provides) "inferior officers" whose appointment "Congress may by law vest . . . as they think proper, in the President alone, in the courts of law, or in the heads of departments." Put simply, the Constitution assumes that the executive power, even if vested in a President, will be carried out by many other people.

Unitary executive theorists apparently realize that claims like Sekulow's the-President-is-a-branch are hyperbole, because they do not argue for the abolition of all executive offices save the President. Instead, they typically argue that the vesting clause of Article II entitles the President to supervise all executive officers, which cashes out as a right to remove those officers exercising executive power contrary to the wishes of the President.

At one point the Supreme Court came close to buying that argument. In Myers v. United States, Chief Justice Taft leaned on what he took to be the practice in the early days of the Republic and a presumption in favor of executive supervision to hold that a statutory limit on Presidential removal of a postmaster was unconstitutional. Yet Myers was never read for all it is worth. Had it been, it would invalidate so-called independent agencies and politically insulated special prosecutors. Those were validated in, respectively, the New Deal-era case of Humphrey's Executor v. US and the Rehnquist Court's almost-unanimous opinion in Morrison v. Olson.

For a time, Morrison was remembered mostly for what seemed like Justice Scalia's prescient dissent, apparently predicting the excesses of Ken Starr's investigation of President Clinton, but the pendulum should, by now, have swung back. President Trump's firing of FBI Director James Comey and a string of Inspectors General who thought that neither Trump nor his top advisers were above the law underscores the urgent need for insulating some watchdog officials from presidential dismissal. If, in order to check a President as corrupt and shameless as Trump, we must also tolerate an occasional independent investigator who goes overboard in the manner of Ken Starr, that is a price worth paying. Rehnquist and the rest of the Court in Morrison were right and Scalia was wrong after all.

To be sure, Rehnquist's opinion in Morrison was not nearly as persuasive as it ought to have been, because it focused on how much executive power the Independent Counsel Act removed from the President -- not too much, the Court said -- rather than on what ought to have been the real question: Whether there is a functional need to insulate an official or body from direct Presidential oversight due to the unacceptably high risk of Presidential self-dealing.

In our 2016 article in defense of Federal Reserve independence, Professor Buchanan and I explained that the ubiquitous risk that politicians will make bad or short-sighted decisions does not warrant such independence but a substantial self-dealing risk does. Congress has not honored that principle perfectly in deciding which officials need to be insulated from firing by the President, but then, because the courts have not applied a risk-of-self-dealing rule as the core criterion for upholding limits on Presidential removal, it hasn't had to.

To be clear, I am not now advocating any particular doctrinal test, nor did Professor Buchanan and I propose one in our article on the Fed. If I were to propose a doctrinal test, it might be one that presumes the constitutionality of statutory limits on Presidential removal. After all, the Constitution is silent on the question whether Congress can insulate particular officials from Presidential removal. Absent an express constitutional limit, one might think that Congress gets to legislate. Hence--and again, this is quite tentative--my preferred rule would be something like this: Statutory limits on Presidential removal of officers are presumed permissible, absent a showing that Congress lacked a plausible ground for worrying about self-dealing.

Whatever precise form any legal test takes, Congress should be able to insulate Inspectors General from being fired by the very people they're meant to be monitoring. Indeed, if either: (a) the current occupant of the Oval Office were not a shameless monster, or (b) every Republican in the Senate except for Mitt Romney were not a spineless enabler, Congress would not need to provide such insulation. Unfortunately, the existing Inspectors General Act does not protect an Inspector General from removal. Even so, Trump managed to have violated its very weak limits.

As originally enacted in 1978, the Act required the President to notify Congress of the reasons for removal of an Inspector General. Congress amended that provision in 2008 to require that the notice to Congress come at least 30 days in advance of a removal or transfer. Trump's letter to Speaker Pelosi appears to express an intent to comply with the 30-day rule but sets forth only the following explanation for removing IG Linick: "it is vital that I have the fullest confidence in the appointees serving as Inspectors General. That is no longer the case with regard to this Inspector General."

That is not a reason. It is a statement of the fact that Trump fired Linick. And it is at best a grossly incomplete statement and arguably a clear lie. Reporting indicates that Linick was removed because he opened an investigation into Secretary of State Pompeo's use of State Department funds for personal matters. The amended Inspectors General Act does not require much detail, so Trump could have complied with it by sending Pelosi a notice that "I'm firing Linick because he is doing his job by investigating Pompeo; I want a loyalist in the position." Given the administration's shamelessness, it almost counts as encouraging that Trump didn't write that.

Of course, this episode raises the question of why Congress did not insulate IGs from Presidential removal with fixed terms. Presumably, Congress assumed that the political pressure resulting from baldly undermining a government watchdog would deter an administration from doing what Trump has been doing with respect to the IGs.

Perhaps that assumption made sense in an earlier, less hyper-partisan time. It was the linchpin of Scalia's Morrison dissent, in which he wrote: "Political pressures produced special prosecutors -- for Teapot Dome and for Watergate, for example -- long before this statute created the independent counsel." He might have added that political pressure also produced a good substitute special prosecutor in the wake of the Saturday Night Massacre.

Perhaps the new IGs Trump is naming to replace the ones he has dismissed will be like Leon Jaworski in continuing the work of their predecessors without fear of troubling the President or his inner circle. But if so, it will not be because of political pressure. Congressional Republicans' fealty to Trump ensures that Trump will pay no political price for dismissing any new IG who dares to do the job assigned by law.

The obvious response would be for Congress to amend the Inspectors General Act to render IGs independent, but of course the same factors that prevent Trump from paying a political price for his brazen attack on the government watchdogs will prevent the enactment of any such law. Action will have to await a future Congress and President with some sense of decency.

The Constitution makes that triply difficult. First, the Senate allows a minority of the country that is disproportionately white and rural (and thus favors the GOP) to block legislation. Second, at least in our era, the Electoral College gives a similar advantage to the GOP's constituency in electing a President. Third, as a result of minority rule in the two institutions with responsibility for appointing federal judges, Republicans have a majority on the Supreme Court. Thus far, they have not used that majority to impose the full-throated version of the unitary executive theory, but there are rumblings in that direction.

Should Trump and Senate Republicans remain in power after the November election, government accountability will end up as one of the (many) casualties. At that point we may well have reason to conclude that the Constitution is a suicide pact after all.