The rise and rise of the administrative state

Harvard Law Review

Volumn 107, Issue 6, 1994, Pages 1231-1254

  Lawson, Gary ^a,b,c  

^a NW University School of Law ^*

^b Claremont Men's College ^*

^c YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042578750     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341842     Document Type: Article

References (130)

1. I use the word "unconstitutional" to mean "at variance with the Constitution's original public meaning." That is not the only way in which the word is used in contemporary legal discourse. On the contrary, it is commonly used to mean everything from "at variance with the private intentions of the Constitution's drafters" to "at variance with decisions of the United States Supreme Court" to "at variance with the current platform of the speaker's favorite political party." These other usages are wholly unobjectionable as long as they are clearly identified and used without equivocation. The usage I employ, however, is the only usage that fully ties the words "constitutional" and "unconstitutional" to the actual meaning of the written Constitution. A defense of this claim would require an extended essay on the philosophy of language, but I can offer some preliminary observations: consider a recipe that calls for "a dash of salt." If one were reading the recipe as a poem or an aspirational tract, one might seek that meaning of "dash" that is aesthetically or morally most pleasing. But if one is reading it as a recipe, one wants to know what "dash" meant to an informed public at the time the recipe was written (assuming that the recipe was written for public consumption rather than for the private use of the author). Of course, once the recipe is understood, one might conclude that it is a bad recipe, either because it is ambiguous or, more fundamentally, because the dish that it yields simply isn't very appealing. But deciding whether to try to follow the recipe and determining what the recipe prescribes are conceptually distinct enterprises. If the Constitution is best viewed as a recipe - nd it certainly looks much more like a recipe than a poem or an aspirational tract - application of the methodology of original public meaning is the appropriate way to determine its meaning.
2. Cf. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HERV. L. REV. 421, 447-48 (1987) (noting that the New Deal "altered the constitutional system in ways so fundamental as to suggest that something akin to a constitutional amendment had taken place").
3. See 1 BRUCE ACKERMAN, WE THE PEOPLE 44 (1991); Sunstein, supra note 2, at 430.
4. See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS passim (1938).
5. This perception is evident more from the quantity and tone than from the specific content of recent discussions of the structural Constitution, but a few scholars have stated the point expressly. See Alfred C. Aman, Jr., Introduction, 77 CORNELL L. REV. 421, 427 (1987) (claiming that structural issues "of fundamental importance" "are again up for grabs"); Sunstein, supra note 2, at 509 (noting that "[t]he last three decades have seen a growing rejection of the New Deal conception of administration").
6. See Geoffrey P. Miller, From Compromise to Confrontation: Separation of Powers in the Reagan Era, 57 GEO. WASH. L. REV. 401, 401 (1989).
7. Modern debates about the scope and structure of the national government tend to concern such relatively peripheral matters as the removability of administrative officials, see, e.g., Morrison v. Olson, 487 U.S. 654, 682-83 (1988); Bowsher v. Synar, 478 U.S. 714, 721-34 (1986), or the national government's power directly to regulate state governments, see, e.g., New York v. United States, 112 S. Ct. 2408, 2419-32 (1992); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537-47 (1985); National League of Cities v. Usery, 426 U.S. 833, 852-55 (1976), overruled by Garcia, 469 U.S. at 531 (1985).
8. Cynthia Farina has aptly described this explicitly non-normative project as an exercise in "legal archaeology."
9. It is possible to maintain that the phrase "the Constitution of the United States" refers not to the text of a specific document, but refers instead, in the fashion of England's unwritten constitution, to a set of practices and traditions that have evolved over time. As a matter of practical governance, such unwritten practices are surely more important than the instructions contained in the written Constitution, but this Article is concerned solely with the written texts that have been submitted to and ratified by the American electorate. Cf. Akhil Reed Amar, Our Forgotten Constitution: A Bicentennial Comment, 97 YALE L.J. 281, 282-85 (1987) (noting discrepancies between the document produced by the constitutional convention and the document ratified by the electorate).
10. THE FEDERALIST No. 45, at 292 (James Madison) (Clinton Rossiter ed., 1961).
11. Id.
12. See id. at 292-93. In my favorite passage from The Federalist, Madison boldly proclaimed that the federal revenue collectors "will be principally on the seacoast, and not very numerous." W. at 292.
13. U.S. CONST. art. I, § 1 (emphasis added).
14. This understanding is expressly confirmed by the Tenth Amendment, which declares that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id. amend. X.
15. See id. art. I, § 8, cls. 1-17.
16. See id. art. IV, §§ 1, 3.
17. See id. art. V.
18. See id. art. I, § 8, cl. 3.
19. See Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1388-89, 1393-95 (1987).
20. U.S. CONST. art. I, § 8, cl. 18 (providing that Congress shall have the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof").
21. See Epstein, supra note 19, at 1397-98.
22. See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 335-36 (1993).
23. See id. at 331-32. But see DAVID E. ENGDAHL, CONSTITUTIONAL FEDERALISM IN A NUTSHELL 18-19 (2d ed. 1987) (arguing that Congress may regulate unenumerated subjects in the course of implementing enumerated powers); David E. Engdahl, The Spending Power 9-14 (April 14, 1993) (unpublished manuscript, on file with the Harvard Law School Library) (same).
24. See id. at 331-32. But see DAVID E. ENGDAHL, CONSTITUTIONAL FEDERALISM IN A NUTSHELL 18-19 (2d ed. 1987) (arguing that Congress may regulate unenumerated subjects in the course of implementing enumerated powers); David E. Engdahl, The Spending Power 9-14 (April 14, 1993) (unpublished manuscript, on file with the Harvard Law School Library) (same).
25. See U.S. CONST. art. I, §8, cl. 1.
26. See Engdahl, supra note 23, at 29-32 (demonstrating that the Taxing Clause is not a Proper source of a federal spending power).
27. U.S. CONST. art. IV, § 3, cl. 2 (emphasis added).
28. See Engdahl, supra note 23, at 30-31.
29. See id. at 37-63.
30. See U.S. CONST. amend. XIII, § 2.
31. See id. amend. XV, § 2.
32. See id. amend. XIV, § 5.
33. See id. amend. XVI. Other amendments also grant power to Congress. See id. amend. XIX, cl. 2 (giving Congress the power to enforce a prohibition on gender-based discriminatory voting practices); id. amend. XXIII, § 2 (giving Congress the power to enforce the District of Columbia's participation in the electoral college); id. amend. XXIV, § 2 (giving Congress the power to enforce a prohibition against poll taxes); id. amend. XXVI, § 2 (giving Congress the power to enforce a prohibition against denying eighteen-year-old people the vote on account of age).
34. See New York v. United States, 112 S. Ct. 2408, 2428-29 (1992); National League of Cities v. Usery, 426 U.S. 833, 852 (1976).
35. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (overruling Usery).
36. See, e.g., Perez v. United States, 402 U.S. 146, 156-57 (1971) (holding the Consumer Credit Protection Act to be within Congress's power to regulate interstate commerce); Wickard v. Filburn, 317 U.S. 111, 128-29 (1942) (holding regulation of the production of wheat grown for personal consumption to be within Congress's power to regulate interstate commerce). The lower federal courts have basically followed suit, though there has been a modest counterrevolution in the past two years. See Huffman Homes, Inc. v. Administrator, United States EPA, 961 F.2d 1310, 1311 (7th Cir.) (stating that the EPA could not regulate, as "wetlands" subject to the Clean Water Act, a small depression that occasionally filled with rainwater), vacated, 975 F.2d 1554 (7th Cir. 1992); United States v. Cortner, 834 F. Supp. 242, 244 (M.D. Tenn. 1993) (holding that Congress could not make carjacking a federal criminal offense, because the activity "lacks any rational nexus to interstate commerce"); cf. United States v. Lopez, z F. 3d 1342, 1366-68 (5th Cir. 1993) (holding that Congress could not, in the absence of explicit legislative findings of an effect on interstate commerce, prohibit knowing possession of a firearm within one thousand feet of a school).
37. See Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905 (1989-1990).
38. 10 Op. Off. Legal Counsel 40, 40-42 (1986).
39. U.S. CONST, art. I, § 1.
40. Id. art. II, § 1.
41. Id. art. III, § 1.
42. The President, through the presentment and veto provisions, see id. art. I, § 7, cls. 2-3, is given a sui generis role in the legislative process that denfies classification along tripartite lines. See Gary Lawson, Territorial Governments and the Limits of Formalism, 78 CAL. L. REV. 853, 858 n. 19 (1990). The Vice President is made an officer of the Senate and is given the power to break ties in that body. See U.S. CONST, art. I, § 3, cl. 4. The Senate is given the seemingly judicial power to try impeachments. See id. art. I, § 3, cl. 6. Certain other powers, such as the power to make treaties and to appoint national officers, are shared among the various departments. See id. art. II, § 2, cl. 2.
43. A number of state constitutions of the founding era did contain such express separation of powers provisions. The most famous example is the Massachusetts Constitution of 1780: In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them; The judicial shall never exercise the legislative and executive powers, or either of them: To the end it may be a government of laws and not of men. MASS. CONST. of 1780, pt. I, art. 30; see also VA. CONST. of 1776 ¶ 2 ("The legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.").
44. I am profoundly indebted to Marty Redish for this important insight.
45. U.S. CONST, art I, § 8, cl. 18 (emphasis added). The word "proper" in the Sweeping Clause provides the textual vehicle for enforcement of the Constitution's nondelegation principle. See Lawson & Granger, supra note 22, at 333-34.
46. See Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 256 ("[T]he Constitution makes no effort to define the 'legislative,' 'executive,' and 'judicial' powers."). The framers harbored no illusions that these powers were self-defining. Madison, for example, observed in The Federalist: Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces - the legislative, executive, and judiciary .... Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. THE FEDERALIST No. 37, at 228 (James Madison) (Clinton Rossiter ed., 1961). The problem of distinguishing the three functions of government has long been, and continues to be, one of the most intractable puzzles in constitutional law. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) ("[T]he maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry . . . ."). See generally William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 503 (1989).
47. See Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 256 ("[T]he Constitution makes no effort to define the 'legislative,' 'executive,' and 'judicial' powers."). The framers harbored no illusions that these powers were self-defining. Madison, for example, observed in The Federalist: Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces - the legislative, executive, and judiciary .... Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. THE FEDERALIST No. 37, at 228 (James Madison) (Clinton Rossiter ed., 1961). The problem of distinguishing the three functions of government has long been, and continues to be, one of the most intractable puzzles in constitutional law. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) ("[T]he maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry . . . ."). See generally William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 503 (1989).
48. See Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 256 ("[T]he Constitution makes no effort to define the 'legislative,' 'executive,' and 'judicial' powers."). The framers harbored no illusions that these powers were self-defining. Madison, for example, observed in The Federalist: Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces - the legislative, executive, and judiciary .... Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. THE FEDERALIST No. 37, at 228 (James Madison) (Clinton Rossiter ed., 1961). The problem of distinguishing the three functions of government has long been, and continues to be, one of the most intractable puzzles in constitutional law. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) ("[T]he maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry . . . ."). See generally William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 503 (1989).
49. See Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 IND. L.J. 233, 264 (1990).
50. Circularity of this kind is neither fatal nor unprecedented. For example, under relevant and correct) case law, a federal employee is an officer subject to the Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, if he or she is sufficiently important to be subject to the Appointments Clause. See Lawson, supra note 41, at 865 n.63.
51. For a description and analysis of the case law on nondelegation, see Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 478-88 (1989).
52. Marty Redish has independently formulated a very similar principle for distinguishing the legislative and executive powers, which he calls the "political commitment principle." See MARTIN H. REDISH, THE CONSTITUTION As POLITICAL STRUCTURE (forthcoming 1994) (manuscript ch. 5, at 2-4, on file with author). This principle requires of valid legislation "some meaningful level of normative political commitment by the enacting legislators, thus enabling the electorate to judge its representatives." Id. ch. 5, at 4; see also David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1252-58 (1985) (distinguishing between statutes that prescribe rules of conduct and invalid statutes that merely state legislative goals).
53. Marty Redish has independently formulated a very similar principle for distinguishing the legislative and executive powers, which he calls the "political commitment principle." See MARTIN H. REDISH, THE CONSTITUTION As POLITICAL STRUCTURE (forthcoming 1994) (manuscript ch. 5, at 2-4, on file with author). This principle requires of valid legislation "some meaningful level of normative political commitment by the enacting legislators, thus enabling the electorate to judge its representatives." Id. ch. 5, at 4; see also David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1252-58 (1985) (distinguishing between statutes that prescribe rules of conduct and invalid statutes that merely state legislative goals).
54. See Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). The Court does occasionally invoke delegation concerns in the course of statutory interpretation. See, e.g., Industrial Union Dep't, AFL-CIO v. American Petroleum Inst. (Benzene), 448 U.S. 607, 646 (1980) (plurality opinion) (holding that an OSHA statute, if interpreted broadly, would be a sweeping and unconstitutional delegation of power).
55. See 15 U.S.C. § 78j(b) (1988) (proscribing the use or employment, "in connection with the purchase or sale of any security . . . , [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors").
56. See 47 U.S.C. § 307(a) (1988) (prescribing that the Federal Communications Commission shall grant broadcast licenses to applicants "if public convenience, interest, or necessity will be served thereby").
57. See 21 U.S.C. § 41 (1988) (forbidding the importation of "any merchandise as tea which is inferior in purity, quality, and fitness for consumption to the standards" set by the Secretary of Health and Human Services).
58. See, e.g., Touby v. United States, 111 S. Ct. 1752, 1756 (1991); Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-24 (1989); Mistretta v. United States, 488 U.S. 361, 378-79 (1989).
59. The problem with the Goodness and Niceness Commission under current law (if indeed there is a problem) would be that it had been delegated too much of Congress's power in one fell swoop. Modern law, in other words, will permit Congress to create a set of miniature Goodness and Niceness Commissions, no one of which has authority over all aspects of life, but would likely balk at a single agency exercising unconstrained legislative authority over too broad a range of subjects. See Industrial Union Dep't, AFL-CIO v. American Petroleum Inst. (Benzene), 448 U.S. 607, 646 (1980) (plurality opinion) (narrowly construing the Occupational Safety and Health Act because a broad construction would give the Secretary of Labor "unprecedented power over American industry" and would thus constitute "such a 'sweeping delegation of legislative power' that it might be unconstitutional") (quoting Schechter Poultry Corp. v. United States, 295 U.S. 495, 539 (1935)).
60. 488 U.S. 361 (1989).
61. Id. at 372.
62. David Schoenbrod has documented that President Reagan never vetoed a bill on nondelegation grounds nor did his Justice Department ever oppose such legislation. See David Schoenbrod, How the Reagan Administration Trivialized Separation of Powers (and Shot Itself in the Foot), 57 GEO. WASH. L. REV. 459, 464-65 (1989). I have confirmed that this same fact is true of the Bush administration through my own recollections and those of several Bush administration officials and by consulting published opinions of the Office of Legal Counsel.
63. U.S. CONST. art. II, § 1, cl. 1.
64. See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1177 n. 119 (1992).
65. U.S. CONST. art. II, § 3, cl. 3.
66. See Calabresi & Rhodes, supra note 60, at 1198 n.221.
67. See Steven G. Calabresi, The Vesting Clauses As Power Grants, 88 Nw. U. L. REV. (forthcoming 1994) (manuscript at 2, on file with the Harvard Law School Library).
68. U.S. CONST. art. I, § 1, cl. 1.
69. The qualifier "discretionary" is important. If a statute requires a ministerial act, such that a writ of mandamus would properly lie to compel its performance, it does not matter in whom the statute vests power. See Kendall v. United States, 37 U.S. (12 Pet.) 524, 610-13 (1838).
70. See, e.g., Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 AM. U. L. REV. 443, 465-72 (1987) (arguing that Congress "may provide that the President may not substitute his judgment . . . for that of the official to whom Congress has delegated decisionmaking power"); cf. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 55 (1994) (claiming that, under an originalist interpretation of the Constitution, "Congress has wide discretion to vest . . . [administrative powers] in officers operating under or beyond the plenary power of the President").
71. See, e.g., Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 AM. U. L. REV. 443, 465-72 (1987) (arguing that Congress "may provide that the President may not substitute his judgment . . . for that of the official to whom Congress has delegated decisionmaking power"); cf. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 55 (1994) (claiming that, under an originalist interpretation of the Constitution, "Congress has wide discretion to vest . . . [administrative powers] in officers operating under or beyond the plenary power of the President").
72. Several legal scholars have compiled impressive lists of historical materials suggesting that many early legal actors and writers did not contemplate any wide-ranging presidential power of supervision. See Lessig & Sunstein, supra note 66, at 15-17; Morton Rosenberg, Presidential Control of Agency Rulemaking: An Analysis of Constitutional Issues That May Be Raised by Executive Order 12,291, 23 ARIZ. L. REV. 1199, 1205-10 (1981).
73. See Lessig & Sunstein, supra note 66, at 46-52; McGarity, supra note 66, at 466; Rosenberg, supra note 67, at 1209.
74. Steve Calabresi has recently formulated and marshalled these arguments. See Calabresi, supra note 63, at 4-22; Steven G. Calabresi, The Trinity of Powers and the Lessig/Sunstein Heresy passim (March 6, 1994) (unpublished manuscript, on file with the Harvard Law School Library). I can here summarize only a few of Professor Calabresi's arguments. First, the Sweeping Clause gives Congress power to carry into execution "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST. art. I, § 8, cl. 18 (emphasis added). In view of this language, it is very hard to argue that the Article II Vesting Clause does not vest powers. Second, a close textual and structural comparison of Articles II and III demonstrates that the Vesting Clauses in each Article serve the same function. Inasmuch as the Article III Vesting Clause must be read as a grant of power to courts to decide cases rather than as merely a designation of office, the Article II Vesting Clause must also be a grant of power. Third, the Article II Vesting Clause is the only plausible source of a constitutional power to execute the laws. The only other conceivable source of such a power - the Take Care Clause, U.S. CONST, art II, § 2, cl. 3 (declaring that the President "shall take Care that the Laws be faithfully executed") - is worded as a duty of faithful execution rather than as a grant of power.
75. See Calabresi & Rhodes, supra note 60, at 1166.
76. See id.; Lee S. Liberman, Morrison v. Olson: A Formalist Perspective on Why the Court Was Wrong, 38 AM. U. L. REV. 313, 353-54 (1989).
77. The executive power, unlike the legislative and judicial powers, has always been understood to be delegable by the President. See Mistretta v. United States, 488 U.S. 361, 424-25 (1989) (Scalia, J., dissenting); 2 ANNALS OF CONG. 712 (1792) ("[I]t is of the nature of Executive Power to be transferrable to subordinate officers; but Legislative authority is incommunicable, and cannot be transferred.") (statement of Representative Findley). Accordingly, if the President can directly exercise all powers vested by statute in executive officials, the President can Presumably designate any subordinate official to exercise that power. Thus, if a statute vests authority to promulgate standards for workplace safety in the Secretary of Labor, the President could, on this understanding, personally assume that power and then delegate it to the Secretary of Defense. Perhaps this is the correct view of the President's power, but it seems more plausible to suppose that Congress can at least determine which subordinate officials, if any, are permitted to exercise delegated executive powers. See Geoffrey P. Miller, The Unitary Executive in a Unified Theory of Constitutional Law: The Problem of Interpretation, 15 CARDOZO L. REV. 201, 205 (1993). On this supposition, if a statute vests power to promulgate workplace standards in the Secretary of Labor, the President cannot personally promulgate safety standards nor designate anyone other than the Secretary of Labor to perform that task, although the President can issue instructions - including instructions so detailed that they take the form of regulations - with which the Secretary of Labor must comply if he or she is to act at all.
78. The executive power, unlike the legislative and judicial powers, has always been understood to be delegable by the President. See Mistretta v. United States, 488 U.S. 361, 424-25 (1989) (Scalia, J., dissenting); 2 ANNALS OF CONG. 712 (1792) ("[I]t is of the nature of Executive Power to be transferrable to subordinate officers; but Legislative authority is incommunicable, and cannot be transferred.") (statement of Representative Findley). Accordingly, if the President can directly exercise all powers vested by statute in executive officials, the President can Presumably designate any subordinate official to exercise that power. Thus, if a statute vests authority to promulgate standards for workplace safety in the Secretary of Labor, the President could, on this understanding, personally assume that power and then delegate it to the Secretary of Defense. Perhaps this is the correct view of the President's power, but it seems more plausible to suppose that Congress can at least determine which subordinate officials, if any, are permitted to exercise delegated executive powers. See Geoffrey P. Miller, The Unitary Executive in a Unified Theory of Constitutional Law: The Problem of Interpretation, 15 CARDOZO L. REV. 201, 205 (1993). On this supposition, if a statute vests power to promulgate workplace standards in the Secretary of Labor, the President cannot personally promulgate safety standards nor designate anyone other than the Secretary of Labor to perform that task, although the President can issue instructions - including instructions so detailed that they take the form of regulations - with which the Secretary of Labor must comply if he or she is to act at all.
79. See, e.g., Morrison v. Olson, 487 U.S. 654, 696-97 (1988) (upholding the constitutionality of the independent counsel provisions of the Ethics in Government Act); Bowsher v. Synar, 478 U.S. 714, 721-27 (1986) (striking down a provision of the Gramm-Rudman-Hollings Act that gave the Comptroller General a role in the appropriations process).
80. It is therefore constitutionally nonexistent as well. The only mode of removal specifically mentioned in the Constitution is impeachment. See U.S. CONST, art. II, § 4. Accordingly, one could reasonably believe: that impeachment is the only permissible form of removal, that Congress's power to create offices carries with it the power to prescribe the form of removal, or that the power of removal follows the power of appointment, so that if the Senate must consent to an officer's appointment, it must also consent to that officer's removal. See Lawson, supra note 41, at 883 n.172. One can infer a presidential removal power only by assuming that such a power is necessary in order to ensure a unitary executive. See Myers v. United States, 272 U.S. 52, 132-35 (1926) (making such an inference). Inasmuch as even the strongest removal power does not ensure compliance with the Article II Vesting Clause, any such inference of a constitutionally based presidential removal power seems hard to justify.
81. See 1 ANNALS OF CONG. 384-412, 473-608, 614-31, 635-39 (1789). Should this fact give pause to advocates of the unitary executive? Probably, although the framers' silence is not decisive in the face of compelling textual and structural arguments for presidential control of execution. In order to establish that something is the original meaning of a constitutional provision, one needs to show that the general public would have acknowledged that meaning as correct if all relevant arguments and information had been brought to its attention. Actual instances of usage (or non-usage) are therefore probative but not dispositive.
82. See, e.g., 18 Op. Att'y Gen. 31, 32 (1884); 11 Op. Att'y Gen. 14, 15-19 (1864); 1 Op. Att'y Gen. 624, 625-29 (1823). But see 6 Op. Att'y Gen. 326, 339-46 (1854) (disavowing the reasoning and conclusions of these opinions).
83. See, e.g., 18 Op. Att'y Gen. 31, 32 (1884); 11 Op. Att'y Gen. 14, 15-19 (1864); 1 Op. Att'y Gen. 624, 625-29 (1823). But see 6 Op. Att'y Gen. 326, 339-46 (1854) (disavowing the reasoning and conclusions of these opinions).
84. See, e.g., 18 Op. Att'y Gen. 31, 32 (1884); 11 Op. Att'y Gen. 14, 15-19 (1864); 1 Op. Att'y Gen. 624, 625-29 (1823). But see 6 Op. Att'y Gen. 326, 339-46 (1854) (disavowing the reasoning and conclusions of these opinions).
85. See, e.g., 18 Op. Att'y Gen. 31, 32 (1884); 11 Op. Att'y Gen. 14, 15-19 (1864); 1 Op. Att'y Gen. 624, 625-29 (1823). But see 6 Op. Att'y Gen. 326, 339-46 (1854) (disavowing the reasoning and conclusions of these opinions).
86. See Merrill, supra note 45, at 253-54. Nor is it obvious that courts would have validated limitless delegations directly to the President rather than to "expert, non-political" agencies.
87. See 15 Op. Off. Legal Counsel 8, 16-17 (1991) (construing a statute to permit the Secretary of Education to review decisions of administrative law judges on the ground, inter alia, that foreclosure of review would be unconstitutional); 13 Op. Off. Legal Counsel 299, 306-07 (1989) (objecting generally to concurrent reporting requirements that allow agencies to transmit budget requests or legislative proposals to Congress without presidential review); 12 Op. Off. Legal unsel 58, 60-71 (1988) (asserting the unconstitutionality of a congressional resolution requiring the Centers for Disease Control to mail AIDS information free from executive supervision).
88. See 15 Op. Off. Legal Counsel 8, 16-17 (1991) (construing a statute to permit the Secretary of Education to review decisions of administrative law judges on the ground, inter alia, that foreclosure of review would be unconstitutional); 13 Op. Off. Legal Counsel 299, 306-07 (1989) (objecting generally to concurrent reporting requirements that allow agencies to transmit budget requests or legislative proposals to Congress without presidential review); 12 Op. Off. Legal unsel 58, 60-71 (1988) (asserting the unconstitutionality of a congressional resolution requiring the Centers for Disease Control to mail AIDS information free from executive supervision).
89. See 15 Op. Off. Legal Counsel 8, 16-17 (1991) (construing a statute to permit the Secretary of Education to review decisions of administrative law judges on the ground, inter alia, that foreclosure of review would be unconstitutional); 13 Op. Off. Legal Counsel 299, 306-07 (1989) (objecting generally to concurrent reporting requirements that allow agencies to transmit budget requests or legislative proposals to Congress without presidential review); 12 Op. Off. Legal unsel 58, 60-71 (1988) (asserting the unconstitutionality of a congressional resolution requiring the Centers for Disease Control to mail AIDS information free from executive supervision).
90. U.S. CONST. art. III, § 1.
91. See id.
92. Joshua I. Schwartz, Nonacquiescence, Crowell v. Benson, and Administrative Adjudication, 77 GEO. L.J. 1815, 1835 (1989).
93. See Freytag v. Commissioner, 111 S. Ct. 2631, 2654-56 (1991) (Scalia, J., concurring in part and concurring in the judgment); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 280 (1855); Frank H. Easterbrook, "Success" and the Judicial Power, 65 IND. L.J. 277, 280-81 (1990).
94. See Freytag, 111 S. Ct. at 2655; Murray's Lessee, 59 U.S. at 284.
95. See REDISH, supra note 49, ch. 5, at 9-11 (discussing Locke and Montesquieu).
96. 59 U.S. (18 How.) 272 (1855).
97. U.S. CONST. amend. V.
98. Legislation that does not require executive and judicial adherence to principles of due process is not "proper" under the Sweeping Clause and thus would have been unconstitutional even before ratification of the Fifth Amendment in 1791. See Lawson & Granger, supra note 22, at 329-30.
99. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 916, 918 (1988).
100. Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 DUKE L.J. 197, 227.
101. See Chevron U.S.A. Inc. v. National Resources Defense Counsel, Inc., 467 U.S. 837, 842-43 (1984).
102. See, e.g., 5 U.S.C. § 706(2)(E) (1988) (specifying the substantial evidence test); 29 U.S.C. § 660(a) (1988) (same).
103. See Calabresi & Rhodes, supra note 60, at 1155-36.
104. THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961).
105. See Sunstein, supra note 2, at 446-47.
106. See OFFICE OF THE FED. REGISTER, NATIONAL ARCHIVES & RECORD ADMIN., UNITED STATES GOVERNMENT MANUAL 1993/1994, at 612-17 (1993).
107. See FTC v. Standard Oil Co., 449 U.S. 232, 245 (1980) (refusing to permit judicial review of the filing of an administrative complaint on the ground that such agency action is nonfinal).
108. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1556 (1991).
109. See supra p. 1234.
110. Although, as Lawrence Lessig and Cass Sunstein point out, the Sweeping Clause gives Congress substantial power to control the manner in which the executive department executes the laws, see Lessig & Sunstein, supra note 66, at 66-69, that power is limited by the Sweeping Clause's terms. Congress is permitted to create a particular governmental structure if, but only if, other constitutional provisions or background understandings establish that such a structure conforms to a "proper" conception of separation of powers. See Lawson & Granger, supra note 22, at 333-34; see also Lessig & Sunstein, supra note 66, at 67 n.278, 69 (noting that there are constitutional limits on Congress's power under the Sweeping Clause). Thus, the scope of Congress's power to structure the national government depends largely on the extent to which Vesting Clauses of Articles II and III do or do not grant power to the President and the federal courts, respectively - and thus do not or do leave governmental powers unallocated by the constitutional text. Accordingly, Professors Lessig and Sunstein's conclusion that "the framers wanted to constitutionalize just some of the array of power a constitution-maker must allocate, as for the rest, the framers intended Congress (and posterity) to control as it saw fit," id. at 41, ultimately rests, as a textual matter, on their argument that the Article II and Article III Vesting Clauses are not grants of power, see id. at 46-52 - an argument that is very difficult to sustain either textually or structurally. See supra note 69. (Patty Granger and I are grateful to Professors Lessig and Sunstein for their generous use of our article on the Sweeping Clause in their recent work on the presidency. See Lessig & Sunstein, supra note 66, at 41 n.178, 67 n.278. At the risk of appearing to quibble in the name of clarification, however: Professors Lessig and Sunstein cite our article, under a "see also" signal, in support of the conclusion that the framers left the allocation of some important governmental powers to "Congress (and posterity) to control as it saw fit." See id. at 41 n.178. Our article neither directly supports nor directly rebuts such a claim of congressional power. It demonstrates that Congress can structure the government only through laws that are objectively necessary and proper, see Lawson & Granger, supra note 22, at 276, but whether a particular governmental structure is "proper" depends on constitutional norms external to the Sweeping Clause. Thus, as noted above, the soundness of Professors Lessig and Sunstein's conclusion concerning congressional power depends largely on the soundness of their interpretation of the Article II and Article III Vesting Clauses. The phrase "necessary and proper" in the Sweeping Clause is a neutral player in that dispute - although the Sweeping Clause's use of the phrase "powers vested" supports a power-granting construction of the Vesting Clauses. See supra note 69. By way of further clarification: Professors Lessig and Sunstein cite - and endorse - our conclusion that the word "proper" in the Sweeping Clause constrains Congress's power, but with the proviso that they "do not agree that the clause is a limitation on Congress's power (rather than a grant of power)." Lessig & Sunstein, supra note 66, at 67 n.278. In fact, on this point (as on many others), there is no disagreement among us. Ms. Granger and I emphatically maintain that the Sweeping Clause is a grant of power to Congress, see, e.g., Lawson & Granger, supra note 22, at 270, 276, 328, but insist that it is a grant of limited rather than unlimited power.)
111. See supra note 1.
112. I suspect that this claim is controversial only because of a failure to distinguish between theories of interpretation and theories of adjudication. Imagine, for example, that a second American revolution openly discards the Constitution, so that there is no chance that any conclusions about the Constitution's meaning could have any significant effects on the real world. In the absence of any plausible concern about the practical consequences of constitutional interpretation (and putting aside for the moment the interpretative significance of precedent), it seems inconceivable that one would even think to apply anything other than originalist interpretivism when interpreting the Constitution -just as no one would today think of interpreting the Articles of Confederation by any other method. In other words, I suspect that originalist interpretivism is controversial only because its descriptive interpretative conclusions are widely thought to have prescriptive adjudicative consequences.
113. See ACKERMAN, supra note 3, at 34-57; Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 510-15 (1989) (hereinafter Ackerman, Constitutional Politics]; Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1051-57 (1984).
114. See ACKERMAN, supra note 3, at 34-57; Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 510-15 (1989) (hereinafter Ackerman, Constitutional Politics]; Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1051-57 (1984).
115. The Constitution was ratified in a manner inconsistent both with the amendment process specified in the Articles of Confederation and with the ratification procedures of a number of state constitutions. The ratification of the Reconstruction Amendments involved something very cose to vote fraud. See Ackerman, Constitutional Politics, supra note 102, at 500-07.
116. Akhil Amar has argued that the ratification of the original Constitution was valid because was consistent with an accepted background norm for the ratification of fundamental law: ratification by direct majority vote of "We the People." That norm, he argues, is carried forward in the existing Constitution as an unenumerated right of the people, so an amendment ratified by direct majority vote would be constitutionally valid. See Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1044 (1988). This analysis, however, cannot save the administrative state, because no such amendment has ever been so ratified.
117. Ackerman, Constitutional Politics, supra note 102, at 508 (paraphrasing Coleman v. Miller, 307 U.S. 433, 449 (1939)).
118. Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 748 (1988) (emphasis added).
119. 108Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best (October 20, 1993) (unpublished manuscript, on file with the Harvard Law School Library).
120. Id. at 3.
121. See Id. at 26-32.
122. Id. at 3, 4.
123. U.S. CONST. art. I, § 7, cls. 2-3.
124. See McCutchen, supra note 108, at 62-65.
125. See supra note 107.
126. See Suzanna Sherry, An Originalist Understanding of Minimalism, 88 Nw. U. L. REV. 175, 182 (1993). Of course, there may be tactical reasons for casting normative political arguments in the (often unaccommodating) language of constitutionalism. If official actors or the public believe, or act as though they believe, that the Constitution matters, effective rhetorical strategy requires that one couch arguments in constitutional language - and perhaps even that one lie about one's goals and methods. But truth-seekers have no interest in such rhetorical games.
127. See Gary S. Lawson, An Interpretivist Agenda, 15 HARV. J.L. & PUB. POL'Y 157, 160-61 (1992); Larry Simon, The Authority of the Constitution and Its Meaning: A Preface to a Theory of Constitutional Interpretation, 58 S. CAL. L. REV. 603, 606-07, 613-19 (1985).
128. See Gary S. Lawson, An Interpretivist Agenda, 15 HARV. J.L. & PUB. POL'Y 157, 160-61 (1992); Larry Simon, The Authority of the Constitution and Its Meaning: A Preface to a Theory of Constitutional Interpretation, 58 S. CAL. L. REV. 603, 606-07, 613-19 (1985).
129. Political candidates seeking office typically do not call for abolishing administrative government in the name of the Constitution, which suggests that such a platform probably would not garner a large percentage of the popular vote.
130. See Gary S. Lawson, The Ethics of Insider Trading, 11 HARV. J.L. & PUB. POL'Y 727, 778 (1988) ("It is conceivable that the ethical, epistemological, and metaphysical problems of the ages will be solved by an article in a twentieth-century, English-language law journal. But I rather doubt it.").