This is the Worst Possible Time to Strengthen Executive Power

Tonight from 10-11 pm Eastern time, Professor Vik Amar and I will discuss the unitary executive theory (UET) with a special focus on the argued-but-still-pending SCOTUS case of Trump v. Slaughter. The late start time is because the live audience will be in Davis, California at the Schwartz/Levi Inn of Court. (For those unfamiliar with the concept, in the United States an Inn of Court is something in between a bar association and a social club for judges, lawyers, and law students. American Inns of Court are modeled loosely on their older UK predecessors, which also have regulatory functions like those of a state bar in the U.S.) I'll be Zooming in but the event is otherwise only in-person, so there's no remote access. Accordingly, for the benefit of readers of this blog and also to help me organize my remarks, here I'll set out the core of my view.

I'll begin with the observation that although tonight's discussion was planned months ago, it couldn't be more timely. The current occupant of the White House is hellbent on violating federal statutes and the Constitution. Just yesterday, with less than two hours to go before his self-imposed deadline for carrying out his threat to commit war crimes, President Trump announced a two-week ceasefire in the war he started in violation of international law and the Constitution. Craven party loyalty prevents Congress from impeaching and removing him for his multiple high crimes and misdemeanors. Could there possibly be a worse time to contend that the U.S. president should have more power and fewer statutory constraints?

Perhaps during the Q&A, one or more audience members will offer a robust defense of the extreme version of the UET championed by the White House and apparently resonating with the conservative super-majority of the Roberts Court. Professor Amar and I will likely disagree with one another on some points because he is somewhat more sympathetic to the UET than I am, but he is hardly a UET fanatic. For example, long ago (and also more recently), he highlighted the "retrieval" problem: accretions of executive power tend to be a one-way ratchet because presidents can veto bills reducing their powers. Thus, I expect our disagreement to be narrow compared with our areas of agreement.

So, what is my view? Simply that the Constitution is silent on the key questions implicating UET: whether and to what extent Congress may limit the ability of a president to remove an officer? To my mind, UET proponents are unpersuasive in their textual arguments. Yes, Article II vests "the executive power" in the president, but it does not define what that power is nor does it say that for the president to exercise it everyone in the executive branch must serve at his pleasure.

The UET argument that "the Constitution vests the entirety of the executive power in the President," as Chief Justice Roberts asserted in Trump v. United States, proves too much. After all, even officers who serve at the pleasure of the president can exercise executive power without direct supervision by the president--often in ways that cannot be readily undone--until they are fired. If taken seriously, the Trump dictum would mean that the executive branch could consist of only the president and perhaps a handful of valets, in direct contradiction of the Constitution's reference to "heads of departments" and "officers." The Vesting Clause cannot bear the weight that the UET would place on it.

What about the Take Care Clause? Numerous scholars have argued, persuasively in my view, that it imposes a duty on the president but does not grant any power the president would otherwise lack (such as at-will removal). Moreover, it would be especially rich for the Court to rely on the Take Care Clause to enhance presidential removal authority at a time when the president is taking care to ensure that so many of the laws are not faithfully executed.

Which is not to say that the Court won't do exactly that. Based on the oral argument in Slaughter, I fully expect the Court to invalidate the removal restrictions on Federal Trade Commissioners either by frankly overruling Humphrey's Exeuctor v. United States or essentially confining it to its facts. (One might think it impossible to confine Humphrey's to its facts without ruling against Trump in Slaughter, given that both cases involve the FTC. However, the Court might say that today's FTC exercises executive powers that it lacked in 1935.)

I should be clear that while I do not support the Court's effort to eliminate nearly all independent agencies, I also am not a strong proponent of the "quasi" categories in Humphrey's. As I explain in a recently published symposium essay, "in relying on the quasi categories, Humphrey's planted the seeds for its own destruction. It implied that if the [FTC's] task were executive, then the removal restrictions would be unconstitutional. Put differently, Humphrey's itself accepted the UET’s view of the removal power."

What is to be done? One option would be to treat removal restrictions as a matter purely for Congressional discretion, so long as Congress itself doesn't retain a role in removal (because the Constitution provides only impeachment as a means of congressional participation in removal). Such an approach would hardly be disastrous. As Justice Kagan pointed out during the Slaughter oral argument, presidents have signed a great many laws that contain removal restrictions. They presumably did so because they concluded that those restrictions were not unduly intrusive on the powers of the presidency. Meanwhile, it is nearly impossible to imagine that two-thirds of each house of Congress would ever vote to place removal restrictions on federal officials over the veto of a president, so we need not worry about hard cases, such as removal restrictions on the Secretary of Defense or the Secretary of State. Accordingly, and in light of the Constitution's silence on the point, leaving the issue to Congress would make considerable sense.

I recognize, however, that the current Court will not go down that path, which would be even more permissive of removal than Humphrey's itself, and the Court seems intent on junking Humphrey's (in spirit even if not formally) in favor of a rule that further restricts congressional power to impose removal restrictions. In place of Humphrey's, I expect the Roberts Court to give us a rule barring removal restrictions except for the Federal Reserve, based on a bogus historical distinction. As I explain in the symposium essay, if the Court insists on restricting the removal power, a sounder course would be to replace Humphrey's Executor with a functional inquiry into the question whether a risk of executive branch self-dealing warrants insulation from at-will presidential removal.

-- Michael C. Dorf