Article toward a duty-based theory of executive power

Fordham Law Review

Volumn 78, Issue 1, 2009, Pages 71-119

  Driesen, David M ^a  

^a SYRACUSE UNIVERSITY   (United States)

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EID: 73049100289     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (507)

1. See generally David M. Driesen, Firing U. S. Attorneys, 60 Admin. L. Rev. 707 (2008) (providing a brief preliminary sketch of the theory developed and fleshed out more fully here).
2. See Morrison v. Olson, 487 U. S. 654, 697 (1988) (Scalia, J., dissenting) (linking the "proud boast of our democracy that we have 'a government of laws and not of men'" to the principle of separation of powers (quoting Mass. Const, pt. I, art. XXX)) ;
3. Glenn A. Phelps, George Washington and American Constitutionalism 124-25 (1993) (describing the founding generation's commitment to the rule of law as including the concept that the law "bound lawmakers and citizens equally") ;
4. Records of the Federal Convention of 1787, 318-19 (Max Farrand ed., rev. ed. 1966) (recounting an argument against the New Jersey plan as failing to remedy the law's "impotence" under the Articles of Confederation) ;
5. id. at 64-65 (arguing that the President should be impeachable because no man should be "above Justice").
6. See generally Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (2004).
7. See Phelps, supra note 2, at 125 (describing this commitment to law governing the government as distinguishing a Republic from monarchy).
8. Id. at 141.
9. See, e.g., id. at 150-54 (discussing George Washington's practice of not vetoing domestic measures he disagreed with).
10. Id. at 141.
11. See, e.g., id. at 81 (explaining that the idea of competing notions of the public interest appeared nonsensical to Washington, since he believed in a single public interest that all virtuous men would endorse) ;
12. William J. Kelleher, The Original Intentions of the Framers for US Presidential Elections (Dec. 18, 2008) (unpublished manuscript), available at http://ssrn. com/abstract=1317837 (discussing the Framers' abhorrence of faction and how they structured presidential elections to avoid it).
13. See, e.g., Gordon S. Wood, The American Revolution: A History 165 (2002) (discussing the Framers' "vision of disinterested leadership").
14. Cf M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 651 (2001) (describing the fragmentation of power within branches of government as "our assurance against threatening concentrations of government power").
15. See Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559, 1560-62 (2007) (describing the U. S. Congress and the courts as "[t]he most obvious checks on the President" but identifying "legal advisors within the executive branch" as an "underappreciated" source of constraint) ;
16. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L. J. 2314, 2316-17 (2006) (presenting use of bureaucracies' ability to check executive branch abuse as a functional proposal to compensate for the demise of the equilibrium between the executive and legislative branches that the Framers sought to achieve).
17. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 85 (2007) (discussing the Cheney-Addington view of the unitary executive theory as prohibiting congressional interference with presidential decisions during wartime) ;
18. Robert D. Sloane, The Scope of Executive Power in the Twenty-First Century: An Introduction, 88 B. U. L. Rev. 341, 344 (2008) (characterizing a new unitary executive theory as a basis for "a view of the scope of the executive power that is unprecedented in its breadth"). Of course, the "cult of personality" has its roots in the tradition of electing Presidents.
19. See Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 657-60 (2000) (associating the cult of personality with presidential elections). But the unitary executive theory, by strengthening the Presidency, enhances the influence of this cult of personality.
20. See Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, 49-50, 124-27, 130-39, 146-50, 153-56, 177-81, 240, 271-73 (2008) (describing how the Bush-Cheney team's "new and improved Unitary Executive Theory" led these actors to believe that the Commander-in-Chief could properly carry out these illegal actions) ;
21. Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B. U. L. Rev. 375, 383-84 (2008) (describing the link between the Department of Justice (DOJ) memorandum justifying illegal wiretapping and the "Vesting Clause thesis") ;
22. see also Hamdan v. Rumsfeld, 548 U. S. 557, 613, 625 (2006) (holding that the military commission's procedures violated the Uniform Code of Military Justice and the Geneva Conventions) ;
23. Hamdi v. Rumsfeld, 542 U. S. 507, 533-38 (2004) (holding that a U. S. citizen accused of being an enemy combatant was unconstitutionally denied a fair hearing and notice of the factual basis for allegations against him) ;
24. ACLU v. Nat'l Sec. Agency, 438 F. Supp. 2d 754, 775 (E. D. Mich. 2006)
25. rev'd and vacated on other grounds, 493 F.3d 644 (6th Cir. 2007)
26. cert, denied, 128 S. Ct. 1334 (2008) (holding that the warrantless wiretapping program violated the Foreign Intelligence Surveillance Act and the Fourth Amendment). In order to make this Article manageable, this Article will not examine the relationship between the unitary executive theory and inherent presidential power to address terrorism.
27. Cf Savage, supra note 12, at 124-27 (discussing the relationship in broad outline).
28. See United States v. Smith, 27 F. Cas. 1192 (C. C. D. N. Y. 1806) (No. 16, 342) (reading the Take Care Clause as establishing a duty to obey the law and therefore declining to allow the President's approval of military action to justify a private violation of the Neutrality Act).
29. But see Lawson, supra note 12, at 376 (identifying the view of the Article II Vesting Clause as a power grant as crucial to justifying wiretapping without the warrants required by the Foreign Intelligence Surveillance Act).
30. See, e.g., Morrison v. Olson, 487 U. S. 654, 705 (1988) (Scalia, J., dissenting) (claiming that the text of Article II, Section 1, Clause 1 requires that the President must have "all of'the executive power") ;
31. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 Yale L. J. 541, 550-56 (1994) (claiming that constitutional text supports the unitary executive theory and arguing for text's "primacy").
32. See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1170 (1992) (claiming that nonunitarians offer functionalist theories instead of the "formal power grant construction" that unitarians rely upon).
33. But see M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1137-38 (2000) (describing the "unitary executive" debate as "dominated by constitutional-text parsing and dueling accounts of the original understanding").
34. Compare Calabresi & Prakash, supra note 14, at 551-56 (arguing for text's "primacy")
35. with Neal Devins, Political Will and the Unitary Executive: What Makes an Independent Agency Independent?, 15 Cardozo L. Rev. 273, 275 (1993) (focusing on the role of political actors in defining the unitariness of executive branch legal interpretations)
36. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 17-32 (1994) (relying heavily upon lessons drawn from practice in the early Republic)
37. Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007) [hereinafter Strauss, Overseer] (focusing heavily on constitutional practice, including contemporary practice)
38. and Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. Rev. 573, 581 (1984) [hereinafter Strauss, Agencies] (assuming that "any useful legal analysis... must" largely "accept" existing "reality").
39. See, e.g., Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L. J. 963, 967-69 (2001) (providing a brief textualist argument for limited presidential power) ;
40. Michael Froomkin, Note, In Defense of Administrative Agency Autonomy, 96 Yale L. J. 787, 799-801 (1987) (same). Professors Cass Sunstein and Lawrence Lessig offer an important theory, but it does not so much compete with the unitary executive theory as narrow and reshape it.
41. See Lessig & Sunstein, supra note 15, at 4 (rejecting the conclusion that the unitary executive theory properly reaches "all administration of the laws"). They characterize the original understanding of the scope of executive power as narrower than today's understanding.
42. Id. at 12-78 (developing a distinction between executive and administrative functions). And they also argue that the broad modern theory might be right, but based on functional rather than historical considerations.
43. See id. at 2-3 (rejecting the claim that the Framers intended to require presidential control over all government officials implementing law, but finding that modern circumstances provide a "compelling nonhistorical argument" for the unitary executive (citation omitted)).
44. Nevertheless, Lessig and Sunstein offer a very significant argument. Accord Calabresi & Prakash, supra note 14, at 545 (characterizing Lessig and Sunstein's work as "seminal").
45. I choose to focus primarily on original intent in order to more squarely meet the contentions of proponents of the unitary executive theory but do not take a position here on the validity of original intent approaches, which has generated a vast literature.
46. See, e.g., Robert H. Bork, The Tempting of America (1990) (insisting on original intent's primacy) ;
47. Leonard W. Levy, Original Intent and the Framers' Constitution (1988) ;
48. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) ;
49. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985) (arguing that the Framers did not intend that their intent would govern future construction of the Constitution).
50. See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 35 (2008) (devoting half of a sentence to the pre-enactment history of removal).
51. 487 U. S. at 697-734 (Scalia, J., dissenting).
52. Pub. L. No. 97-409, 96 Stat. 2039 (1982)
53. (codified at 28 U. S. C. §§ 591-99 (Supp. V 1982)). This provision has since expired.
54. Morrison, 487 U. S. at 659-60.
55. Id. at 660-65 (quoting 28 U. S. C. § 596 (a)) (describing these provisions in detail).
56. Id. at 670-97.
57. Id. at 705 (Scalia, J., dissenting).
58. Id. (describing Article II, Section 1, Clause 1 as lodging "all of the executive power" in the President).
59. Id. (citing U. S. Const, art. II, § 1, cl. 1).
60. Id.
61. With respect to removal, Justice Antonin Scalia states that the "principle that the President had to be the repository of all executive power... necessarily means that he must be able to discharge those who do not perform executive functions according to his liking."
62. Id. at 726
63. (citing Humphrey's Ex'r v. United States, 295 U. S. 602, 627-28 (1935)). With respect to appointment
64. see infra note 31.
65. Morrison, 487 U. S. at 706-07 (Scalia, J., dissenting) (explaining why good cause removal does not amount to complete control).
66. Id. (quoting Humphrey's Ex'r, 295 U. S. at 629). Justice Scalia implies this through his argument that "good cause" removal provisions limit the removal power.
67. See id. at 706-07. He points out that a person who can only be removed for good cause does not serve at the President's pleasure.
68. Id. at 707. Indeed, the purpose of a good cause removal provision is to allow the person protected by it to '"maintain an attitude of independence against the latter's will.'"
69. Id. (quoting Humphrey's Ex'r, 295 U. S. at 629). By rejecting good cause removal, Scalia implicitly rejects executive branch independence from presidential will.
70. See id. at 701-03, 707 (criticizing the appointment provisions because they "severely confine[]" the Attorney General's ability to refuse appointment of an independent counsel). Justice Scalia also emphasizes the separation of powers principle that each department must have "'defense... commensurate to the danger of attack.'"
71. Id. at 704 (quoting The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961)). Justice Scalia applies this principle to the executive branch, which he sees as under attack in Morrison v. Olson.
72. See id. at 703 (criticizing the statute for commencing investigations without the assent of the "President or his authorized subordinates"). He identifies the constitutional need to defend the executive branch as giving "comprehensible content to the Appointments Clause."
73. Id. at 704. And this content leads him to reject the majority's decision to uphold judicial appointment of the independent counsel.
74. See id. at 713.
75. See Myers v. United States, 272 U. S. 52, 151 (1926) (explaining that congressional opposition to a custom or presidential removal arose in response to the "use of patronage for political purposes") ;
76. Harold H. Bruff, Balance of Forces: Separation of Powers Law in the Administrative State 408-09 (2006) (describing President Andrew Jackson's introduction of the policy of wholesale removal of holdover appointees as an innovation justified as serving democracy that soon "degenerated into a spoils system of patronage and cronyism") ;
77. cf. John Yoo, Jefferson and Executive Power, 88 B. U. L. Rev. 421, 425-26 (2008) (citing Thomas Jefferson's introduction of the spoils system-the practice of rewarding supporters with offices in the government-as an effort to assert personal presidential control over "all law enforcement").
78. See Calabresi & Yoo, supra note 18, at 4 (characterizing presidential claims of removal power as decisive evidence that Presidents "have believed in the theory of the unitary executive").
79. Morrison, 487 U. S. at 708 (Scalia, J., dissenting) (emphasis added) (describing the balancing of these factors as "the very essence of prosecutorial discretion").
80. Id.
81. Id. at 708-09 (stating that taking control of this balancing from the President "remove[s] the core of the prosecutorial function" from "[presidential control") ;
82. accord Friends of the Earth v. Laidlaw Envtl. Servs., 528 U. S. 167, 209-10 (2000) (Scalia, J., dissenting) (suggesting that the President's duty to faithfully execute the law requires him to be able to decide to refrain from prosecuting violators of environmental statutes) ;
83. cf. Johnsen, supra note 10, at 1594-95 (explaining that nonenforcement of statutes can undermine the rule of law).
84. Morrison, 487 U. S. at 712 (Scalia, J., dissenting).
85. See 1 Op. Att'y Gen. 624, 624 (1823) (recognizing that an officer honestly exercising discretion within statutory bounds faithfully executes law) ;
86. cf. U. S. Const, art. II, § 3 (requiring the President to "take Care that the Laws be faithfully executed").
87. See Saikrishna Bangalore Prakash, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102 Yale L. J. 991, 992 (1993) (opining that whenever a statute grants an executive branch official discretion, the Constitution authorizes the President to "control that discretion").
88. Accord Edward S. Corwin, The President: Office and Powers 1787-1957, 80-81 (N. Y. Univ. Press 1957) (1940) (opining that allowing the President to substitute his own judgment for that of any agency would convert all law enforcement questions into discretionary questions controlled by "an independent and legally uncontrollable branch of the government") ;
89. see, e.g., Savage, supra note 12 (detailing numerous instances where the Bush administration distorted law in order to enhance the President's power and carry out a militant policy to counter terrorism).
90. See Morrison, 487 U. S. at 690 n. 29 (rejecting the dissent's view that blanket executive removal authority can be inferred from the Article II Vesting Clause) ;
91. Bowsher v. Synar, 478 U. S. 714, 738-39 & nn. 1-3 (1986) (Stevens, J., concurring) (approving of the majority's decision not to endorse the theory that all executive officers must be subject to presidential removal at will) ;
92. Wiener v. United States, 357 U. S. 349, 355-56 (1958) (upholding a congressional decision to insulate a War Claims Commission from presidential control) ;
93. Humphrey's Ex'r v. United States, 295 U. S. 602, 628-29 (1935) (rejecting an illimitable power of the President to remove officers carrying out quasi-legislative or quasijudicial functions) ;
94. United States v. Perkins, 116 U. S. 483, 484-85 (1886) (expressing "no doubt" that Congress may prohibit the President from removing inferior officers) ;
95. Kendall v. United States, 37 U. S. (12 Pet.) 524, 610 (1838) (holding that when the Congress imposes a duty upon an executive officer, the law, rather than the President, controls the exercise of that duty).
96. See Savage, supra note 12 (offering an exhaustive account of the role of the unitary executive theory in executive branch decision making) ;
97. Devins, supra note 15, at 273 (stating that "perceptions about unitariness define White House control of the administrative state").
98. See Savage, supra note 12, at 254, 271 (noting Justices John Roberts and Samuel Alito's support for expanding executive power prior to their elevation to the bench).
99. See, e.g., Calabresi & Prakash, supra note 14, at 593-99 (describing the unitary executive theory as demanding complete presidential control over all executive branch officials and discussing required control mechanisms) ;
100. Calabresi & Rhodes, supra note 15, at 1186-208 (claiming that many arguments made about Article III support the unitary executive theory of Article II) ;
101. Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002, 1022 (2007) (stating that the President can supervise and control principal officers and veto any inferior officer's decision) ;
102. A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. REV. 1346, 1348 (1994) (stating that "unitarians" believe that the Constitution requires that the President have the power to countermand and fire all executive branch officials) ;
103. Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U. L. Rev. 62, 73 (1990) (stating that the U. S. Supreme Court has recognized presidential removal authority in order to "preserve a unitary executive") ;
104. Lessig & Sunstein, supra note 15, at 4 (characterizing the unitary executive theory as a "myth") ;
105. Percival, supra note 16 (arguing against application of the unitary executive theory to officials that have received delegated authority from Congress).
106. See, e.g., Calabresi & Prakash, supra note 14, at 570-99 (discussing various intertextual arguments).
107. U. S. Const, art. II, § 3.
108. Id.
109. See Calabresi & Prakash, supra note 14, at 582-83.
110. See id. at 546 n. 11 (pointing out that originalists have tended to support the unitary executive theory in recent years).
111. See Morrison v. Olson, 487 U. S. 654, 698-99 (1988) (Scalia, J., dissenting) (describing the decision to vest the executive power in a single President as reflecting deliberate rejection of proposals for multiple executives or a council of advisers) ;
112. infra notes 162-65 and accompanying text.
113. See, e.g., Calabresi & Prakash, supra note 14, at 635-62;
114. Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1075 (2006) (arguing that the congressional debates over the Decision of 1789 evinced majority support for a presidential removal power).
115. See Calabresi & Prakash, supra note 14, at 550 (arguing that originalists only resort to historical argument when an ambiguity exists).
116. See Morrison, 487 U. S. at 697 (Scalia, J., dissenting) (identifying the rule of law with separation of powers).
117. See U. S. Const, art. I, § 7, cl. 2 (authorizing two-thirds of the Congress to override a presidential veto).
118. See generally Walter E. Dellinger et al., Principles To Guide the Office of Legal Counsel (2004)
119. reprinted in Johnsen, supra note 10, at app. 2, at 1604 (discussing the President's "constitutional obligation to ensure the legality of executive action") ;
120. Ackerman, supra note 11, at 712 (suggesting that the President's role in lawmaking conflicts with his duty to take care that the law be faithfully executed).
121. See generally Enid Campbell, Oaths and Affirmations of Public Office Under English Law: An Historical Retrospect, J. Legal Hist., Dec. 2000, at 1 (detailing the history of oath taking in England).
122. Cf. Thomas C Grey, The Constitution as Scripture, 37 Stan. L. Rev. 1, 18 (1984) (explaining that the Oath Clause aimed to establish allegiance to the Constitution in much the same way that religious oaths sought to establish allegiance to a church).
123. Cf. Marbury v. Madison, 5 U. S. (1 Cranch) 137, 171 (1803) (stating that the President may not lawfully forbid an executive officer from carrying out acts required by law).
124. See infra notes 175-78 and accompanying text.
125. See Richard J. Pierce, Jr., Saving the Unitary Executive Theory from Those Who Would Distort and Abuse It: A Review of The Unitary Executive, by Steven G. Calabresi and Christopher Yoo, 11 U. Pa. J. CONST. L. (book review) (forthcoming 2009) (manuscript at 3, on file with the Fordham Law Review) (describing the unitary executive theory as the "belief... that the Vesting Clause of Article II confers on the President plenary power over policy making by all Executive Branch... officials" (emphasis added)).
126. See Devins, supra note 15, at 275 (characterizing the administration as "too immense for the White House... to comprehensively coordinate policy making").
127. Morrison v. Olson, 487 U. S. 654, 712 (1988) (Scalia, J., dissenting) ;
128. cf. Devins, supra note 15, at 276 (explaining that a President can appoint "like-minded individuals" in order to "place his imprimatur on governmental operations").
129. See, e.g., Phelps, supra note 2, at 140-41 (showing Washington adopted this view).
130. U. S. Const, art. II, § 3.
131. See Myers v. United States, 272 U. S. 52, 117 (1926) (recognizing that the President "alone and unaided" cannot execute the laws) ;
132. Records of the Federal Convention of 1787, supra note 2, at 53-54 (affirming that the Executive "can do nothing of consequence" without the "great" ministers of war, foreign affairs, etc.) ;
133. see also, e.g., Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L. J. 1636, 1667 (2007) (pointing out that because President Jefferson "could not micromanage" enforcement of the embargo Congress imposed, the U. S. Treasury Department provided much of the enforcement policy's content) ;
134. Letter from George Washington, U. S. President, to Eleanor Francois Elie, Conte de Mousier (May 25, 1789)
135. in 30 The Writings of George Washington, June 1788-Jan. 1790, at 333-34 (John C. Fitzpatrick ed., 1939) (acknowledging the "impossibility" of "one man" performing "all the great business of the State" as the rationale for creating Departments and their officers).
136. See Bruff, supra note 32, at 455 (stating that the "passive mood" of the Take Care Clause signals that the President superintends others' activities) ;
137. Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443, 465-66 (1987) (claiming that the Take Care Clause envisions others executing the law) ;
138. Prakash, supra note 39, at 993 (acknowledging that "[t]he Framers recognized that the President could not enforce federal law alone").
139. See 1 Op. Att'y Gen. 624, 624 (1823) (interpreting the Take Care Clause as precluding the President from overturning a Treasury Department decision) ;
140. cf. Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1120-26 (9th Cir. 1988) (explaining that the duty to faithfully execute the law does not include a power to decline to enforce valid statutes) ;
141. Bruff, supra note 32, at 456 (approving an Attorney General Opinion saying that the President could order a federal prosecutor to dismiss a case with foreign affairs implications, because the President "makes our foreign policy") ;
142. Strauss, Agencies, supra note 15, at 648-50 (finding the clause consistent with vesting decision-making authority in administrative agencies).
143. U. S. Const. art. II, § 1, cl. 8.
144. See Grey, supra note 57, at 18 (describing the oath clause as a "ritual of allegiance" substituting for a religious oath) ;
145. Joseph Story, Commentaries on the Constitution of the United States § 1837, at 702 (1833) (finding that the oath imposed "solemn obligation[s]... especially upon those... who fe[lt] a deep sense of accountability to" God).
146. See, e.g., The Federalist No. 27 (Alexander Hamilton), supra note 31, at 177 (stating that the "sanctity" of the oath will bind all officers to obey federal law).
147. U. S. Const, art. VI, cl. 3. This Oath Clause applies not only to "all executive... Officers... of the United States, " but also to all state and federal officials. Id.
148. See 2 Records of the Federal Convention of 1787, supra note 2, at 551 (recounting Gouverneur Morris's statement supporting allowing the Senate to impeach a President for a misdemeanor because "there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes").
149. U. S. Const, art. II, § 1, cl. 8.
150. Accord David Watson, The Constitution of the United States: Its History Application and Construction 910 (1910) (quoting Thomas Jefferson as stating that the presidential oath substantively replicated the general oath).
151. U. S. Const, amend. V.
152. See Printz v. United States, 521 U. S. 898, 924-25, 943 (1997) (majority and dissenting opinions) (recognizing that the General Oath Clause requires officials to implement constitutional federal statutes) ;
153. accord Dawn E. Johnsen, What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B. U. L. Rev. 395, 412-14 (2008) (explaining why the President's duty to '"preserve, protect and defend'" the Constitution requires him to enforce statutes properly, unless they blatantly violate the Constitution under Supreme Court precedent (quoting U. S. Const, art. II, § 1, cl. 8)). Professor Saikrishna Prakash points out that the General Oath Clause, unlike the Supremacy Clause, U. S. Const, art. VI, cl. 2, does not explicitly mention federal law.
154. See Saikrishna Bangalore Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 992-93 (1993). Yet, the Framers and the Anti-Federalists clearly understood the oath as binding state officials to enforce federal statutes.
155. See The Federalist No. 27 (Alexander Hamilton), supra note 31, at 177 (explaining that the oath, by binding all state and federal officials helps make federal law supreme) ;
156. Letter of Agrippa V, Mass. Gazette, Dec. 11, 1787
157. reprinted in 4 The Complete Anti-Federalist 78 (Herbert J. Storing ed., 1981). The General Oath Clause applies to both state and federal officials, so if it requires state officials to enforce federal law, it must bind federal officials in that way as well.
158. See 1 Op. Att'y Gen. 624, 625 (1823) (opining that when a statute delegates power to a department head, the President's duty to faithfully execute the law precludes his interference with that officer's decision).
159. See Goldsmith, supra note 11, at 41-42 (explaining that by claiming that the Geneva Convention protects Iraqi terrorists even though David Addington insisted that the President's contrary decision not be questioned, the Office of Legal Counsel acted as a "frontline policymaker in the war on terrorism").
160. See id. at 79-80 (recounting FBI Director Bob Mueller's explanation of "why he felt obliged to follow an OLC legal opinion even if the President disagreed").
161. See, e.g., id. at 11 (explaining that the author decided to "fix" defective memoranda authorizing counterterrorism operations, because doing so "was more consistent with my oath of office" than resigning).
162. See id. (suggesting that concerns about violating his oath led to his efforts to narrow torture memos) ;
163. Savage, supra note 12, at 184-88 (explaining how President George W. Bush authorized a narrowing of the warrantless wiretapping program, apparently to avoid resignations of officials who doubted its legality) ;
164. see also David Luban, Lawfare and Legal Ethics in Guantanamo, 60 Stan. L. Rev. 1981, 2000-02 (2008) (describing JAGs as "stubborn rule of law defenders" against torture memos predicated on the unitary executive theory) ;
165. Michael Isikoff, The Fed Who Blew the Whistle, Newsweek, Dec. 22, 2008, at 40, 42 (explaining that the employee blowing the whistle on warrantless wiretapping did so because he '"had taken an oath to uphold the Constitution'" (quoting Thomas Tamm)).
166. Compare U. S. Const, art. VI, cl. 3
167. with id. art. II, § 1, cl. 8.
168. A proposal from the Committee on Detail shows how closely related these two clauses were in the eyes of their drafters: " (He shall take Care to the best of his Ability, that the Laws)
169. Records of the Federal Convention of 1787, supra note 2, at 171.
170. U. S. Const, art. II, § 1, cl. 8.
171. Id.
172. See The Federalist No. 51 (James Madison), supra note 31, at 322.
173. See infra notes 173-74 and accompanying text (showing an understanding that unilateral presidential control of appointments would lead to appointment of quislings).
174. See Calabresi & Yoo, supra note 18, at 4 (characterizing the removal power as an "implied" power).
175. U. S. Const, art. II, § 2, cl. 2.
176. See generally Buckley v. Valeo, 424 U. S. 1, 121 (1976) (per curiam) (describing the Senate as "a participant in the appointive process by virtue of its authority to refuse to confirm" the President's nominees).
177. U. S. Const, art. II, § 2, cl. 2.
178. See Morrison v. Olson, 487 U. S. 654, 671-77 (1988)
179. (explaining why 28 U. S. C. § 594 (a) does not violate the Appointments Clause when it provides for judicial appointment of an independent counsel
180. (citing 28 U. S. C. § 594 (a) (Supp. V 1982)).
181. See id. at 673-77 (rejecting an argument against interbranch appointments, primarily because the Appointments Clause expressly authorizes Congress to vest the appointment of "inferior officers" in the courts).
182. U. S. Const, art. II, § 2, cl. 2;
183. see also Morrison, 487 U. S. at 673 (stating that the Appointments Clause gives Congress "significant discretion" in choosing where it wants to vest the authority to appoint inferior officers).
184. Cf. Ex parte Siebold, 100 U. S. 371, 398 (1879) (affirming Congress's discretionary authority to choose the locus of the appointment power, but suggesting that Congress should favor the department of government in which the official is to be located).
185. Accord Froomkin, supra note 16, at 799;
186. see Morrison, 487 U. S. at 674-75 (noting that the Framers rejected attempts to transfer the authority to appoint inferior officers to the President) ;
187. Calabresi & Rhodes, supra note 15, at 1181 (recognizing that the Inferior Officers Clause both curtails the President's appointment power and recognizes "Heads of Departments" as having a place in the constitutional design).
188. U. S. Const, art. II, § 4.
189. See 2 Records of the Federal Convention of 1787, supra note 2, at 65-66 (recounting James Madison's support for making the President impeachable, because he might "pervert his administration into a scheme of peculation or oppression[,]... betray his trust to foreign powers, " or "lose his capacity").
190. U. S. Const, art. I, § 3, cl. 6.
191. See Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis 17 (2000) (describing avoiding abuse of power as the primary goal of the Appointments Clause debate).
192. Cf. INS v. Chadha, 462 U. S. 919, 951 (1983) (treating the "finely wrought" procedure of bicameralism and presentment explicitly set out in the Constitution as the exclusive means of passing legislation).
193. U. S. Const, art. I, § 3, cl. 6.
194. Id.
195. Id. art. I, § 3, cl. 7.
196. See 1 Annals of Cong. 457 (Joseph Gales ed., 1834) (statement of William Smith) (contending that the Constitution's impeachment provision implies that impeachment is the only "mode" of removal from office) ;
197. Calabresi & Prakash, supra note 14, at 642-43 (noting that some in the First Congress supported the idea that impeachment was the sole constitutionally permissible method of removing an officer) ;
198. Gerhard Casper, An Essay in Separation of Powers, 30 Wm. & Mary L. Rev. 211, 234 (1989) (describing the position that "[r]emoval was possible only by means of impeachment" as one of the major positions taken in the 1789 debate over creation of departments in the executive branch of government).
199. See U. S. Const, art. III, § 1 (stating that "Judges... shall hold their Offices during good Behaviour").
200. See Prakash, supra note 51, at 1035 (asking why the Framers would have specified life tenure for judges if all officers could serve for life).
201. See id. at 1035 n. 101 (suggesting a similar position).
202. See Calabresi & Prakash, supra note 14, at 592 (agreeing that the Necessary and Proper Clause creates congressional authority to create executive offices and to assign duties to carry out statutorily specified tasks) ;
203. Lessig & Sunstein, supra note 15, at 69 (interpreting the Necessary and Proper Clause to allow Congress to "specify the means by which laws were to be executed") ;
204. Strauss, Agencies, supra note 15, at 598-99 (inferring from the paucity of the Constitution's description of the President's powers an intention to leave the "job of creating" the federal government's shape to Congress under the Necessary and Proper Clause) ;
205. see also 2 Records of the Federal Convention of 1787, supra note 42, at 1345 (showing that Madison and Charles Pinckney proposed to specifically provide that Congress can "establish all offices, " but that many members considered this as unnecessary, as the power was clearly implied by the Necessary and Proper Clause) ;
206. William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, LAW & Contemp. Probs., Spring 1976, at 102, 107, 118 (arguing that the Necessary and Proper clause suggests limits on implied presidential power).
207. U. S. Const, art. I, § 8, cl. 18.
208. Accord Kendall v. United States, 37 U. S. (12 Pet.) 524, 10 (1838) (affirming Congress's power to "impose upon any executive officer any duty they may think proper") ;
209. Gilchrist v. Collector of Charleston, 10 F. Cas. 355, 356 (C. C. D. S. C. 1808) (No. 5420) (Congress may vest final decision-making authority in an inferior officer).
210. See Williams v. United States, 42 U. S. (1 How.) 290, 297 (1843) (declaring that the President's duty to superintend administration "cannot require of him to become the administrative officer of every department" lest he "absorb" the various departments' duties) ;
211. see also, e.g., McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316 (1819) (affirming the constitutionality of congressional creation of an independent national bank under the Necessary and Proper Clause). Professors Steven Calabresi and Kevin Rhodes argue that the Necessary and Proper Clause authorizes the creation of executive branch offices, but does not authorize congressional delegation of executive power to such offices.
212. Calabresi & Rhodes, supra note 15, at 1184 n. 158. But this Vesting Clause states that the Constitution, not the President, vests departments with powers. Since this Vesting Clause appears in conjunction with language in Article I authorizing Congress to create departments, this Clause is best read as authorizing Congress to give the officers it creates specific powers.
213. U. S. Const, art. 2, § 2, cl. 1.
214. See The Federalist No. 74 (Alexander Hamilton), supra note 31, at 447 (characterizing the clause as "mere redundancy") ;
215. Lessig & Sunstein, supra note 15, at 32-36, 38 (providing elaboration of this basic point) ;
216. Froomkin, supra note 16, at 800-01.
217. Indeed, a series of early Attorneys General opinions stated that when Congress vested responsibility in a federal officer to perform a duty, the President may not make relevant decisions in her stead. 13 Op. Att'y Gen. 28 (1869) ;
218. Op. Att'y Gen. 226 (1853) ;
219. Op. Att'y Gen. 515, 516 (1846) ;
220. Op. Att'y Gen. 507 (1832) ;
221. Op. Att'y Gen. 624, 625 (1823).
222. Contra Gilchrest, 10 F. Cas. at 357-59 (courts may not order an officer to disobey a presidential order
223. (citing Letter from Caesar A. Rodney, U. S. Att'y Gen., to Thomas Jefferson, U. S. President (July 15, 1808))) ;
224. Op. Att'y Gen. 453, 469-70 (1855).
225. See Townsend v. Little, 109 U. S. 504, 512 (1883) (describing the rule that specific provisions qualify general provisions as a "well settled rule").
226. See Froomkin, supra note 16, at 793 n. 31 (claiming that the Vesting Clause derives its meaning from the Constitution's "full text").
227. U. S. Const, art. I, § 1 (emphasis added).
228. W. art. II, § 1.cl. 1.
229. The duty-based vision of presidential execution through influence, rather than complete control, closely tracks Peter Strauss's distinction between presidential execution through oversight and performance.
230. See generally Strauss, Overseer, supra note 15 (setting out this conception and defending it at length).
231. See U. S. Const, art. II, § 1, cl. 1.
232. See Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501, 522 (2005) (arguing that agencies should generally defer to presidential direction unless the directives take them outside of their statutory authority) ;
233. Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 Colum. L. REV. 263, 315 (2006) (arguing that agencies should only reject presidential requests for "very good reasons").
234. See Goldsmith, supra note 11, at 36-39 (arguing that the Office of Legal Counsel properly tilts toward the President's views in close cases and tries to serves its ends, while affirming a duty to check illegal executive branch initiatives) ;
235. Ackerman, supra note 11, at 660 (arguing that the President's election means that "[n]o cabinet secretary ever imagines himself operating on the same plane of legitimacy as his boss").
236. See Stack, supra note 122, at 294 (pointing out that "agency heads generally have a sense of loyalty to the President or commitment to the President's policies").
237. Cf. Strauss, Overseer, supra note 15, at 714 (pointing out that powerful executive branch officials, even when formally removable by the President, cannot be removed without substantial political cost).
238. David Iglesias & Davin Seay, In Justice 86 (2008) (explaining that David Iglesias formed a task force to review evidence of voter fraud).
239. See id. at 87 (stating that Iglesias found no prosecutable cases after his extensive review of files) ;
240. Kondracke Assumed Voter Fraud as Fact in Claiming Prosecutor Firings Were About "The Failure To Prosecute" It, Media Matters FOR Am., July 12, 2007, http://mediamatters.org/research/200707120008 (reporting that former prosecutor, John McKay, who was accused of failure to pursue voter fraud, did not convene a grand jury on the issue because he thought '"there was no evidence of voter fraud"').
241. See Pierce, supra note 60 (manuscript at 10-11) (claiming that "jawboning" has always been the most important source of presidential influence over the bureaucracy) ;
242. Stack, supra note 122, at 295-96 (distinguishing between the presidential power to influence an agency from a power to direct a particular outcome).
243. Cf. Froomkin, supra note 16, at 812-13 (arguing that the "Take Care Clause" authorizes the President to enforce congressional performance standards, not to "create the standards" himself).
244. U. S. Const, art. I, § 7, cl. 3;
245. see Buckley v. Valeo, 424 U. S. 1, 121 (1976) (per curiam) (noting that the veto provision makes the President "a participant in the lawmaking process") ;
246. Annals OF Cong., supra note 1105, at 463 (statement of James Madison) (characterizing the President's veto power as a qualification of the grant of legislative power to Congress).
247. U. S. Const, art. I, § 7, cl. 3.
248. See, e.g., Robert Pear, Congress Passes Civil Rights Bill, Adding Protections for Disabled, N. Y. Times, Sept. 18, 2008, at A21 (explaining that a new disability rights bill overturns "several recent Supreme Court decisions").
249. See Alden v. Maine, 527 U. S. 706, 719-21 (1999) (discussing how the Eleventh Amendment overruled Chisholm v. Georgia, 2 U. S. (1 Dall.) 419 (1793)).
250. See U. S. Const, art. III, § 2;
251. United States v. Klein, 80 U. S. (13 Wall.) 128, 145-48 (1871) (prohibiting Congress from dictating the outcomes of cases through jurisdiction stripping) ;
252. Ex Parte McCardle, 74 U. S. (7 Wall.) 506, 513-14 (1868) (suggesting that congressional power to strip the Court of jurisdiction has few limits). The extent of congressional jurisdiction stripping power has been the subject of extended debate.
253. See, e.g., Raoul Berger, Congress v. The Supreme Court 1-2, 285-90 (1969) ;
254. Akhil R. Amar, ANeo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985) ;
255. Akhil R. Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) ;
256. Paul M. Bator, Congressional Power Over the Jurisdiction of the Federal Courts, 27 Vill. L. Rev. 1030 (1982) ;
257. Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Pa. L. Rev. 741 (1984) ;
258. Gerald Gunther, Congressional Power To Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984) ;
259. Henry M. Hart, Jr., The Power of Congress To Limit the Jurisdiction of the Federal Court: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953) ;
260. Lawrence G. Sager, The Supreme Court 1980 Term-Foreword: Constitution Limitations on Congress' Authority To Regulate the Jurisdiction of Federal Courts, 95 Harv. L. Rev. 17 (1981) ;
261. Michael Wells, Congress's Paramount Role in Setting the Scope of Federal Jurisdiction, 85 Nw. U. L. Rev. 465 (1991) ;
262. cf. Calabresi & Lawson, supra note 44, at 1008 (arguing that the Constitution does not authorize stripping the Court's jurisdiction, but rather just the moving of jurisdiction between the appellate and original jurisdiction categories).
263. Accord l Annals of Cong., supra note 105, at 487 (statement of James Jackson) (denying that the Constitution vests executive power in the President alone, because of the Senate's role in appointments and treaty making) ;
264. The Federalist No. 51 (James Madison), supra note 31, at 322 (describing the Constitution as arranging "the several offices in such a manner as that each may be a check on the other") ;
265. Strauss, Agencies, supra note 15, at 640 (noting that "[a] focus on checks and balances" legitimizes civil servants as a "fourth force in government").
266. See generally Stack, supra note 122, at 316 (discussing the value of a dialogue between the President and agencies for the rule of law and sound policy).
267. See Calabresi & Prakash, supra note 14, at 550-51.
268. Cf. 2 Records of the Federal Convention of 1787, supra note 2, at 88 (reporting Elbridge Gerry's remark that the Oath Clauses would assure that the Officers see themselves as part of the national government, thereby discouraging "a preference to the State Gov[ernments]").
269. The Federalist No. 51 (James Madison), supra note 31, at 322.
270. See, e.g., Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 7 (2d ed. 2000) (explaining that Morris cited the General Oath Clause's applicability to Senators as a reason to trust the Senate with the impeachment power).
271. See 2 Records of the Federal Convention of 1787, supra note 2, at 84.
272. See Campbell, supra note 56, at 8.
273. See 1 Records of the Federal Convention of 1787, supra note 2, at 203-04.
274. See Bruff, supra note 32, at 16 (pointing out that the New York Constitution required the Governor "to take care that the laws are executed to the best of his ability") ;
275. Calabresi & Yoo, supra note 18, at 32 (describing the New York Constitution as "more unitary" than other state constitutions and noting the Framers' approval of its "articles on executive power") ;
276. Casper, supra note 105, at 241 (describing the New York Constitution as the state constitution most "generous... toward the executive branch").
277. N. Y. Const, of 1777, art. XVII, reprinted in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 2623, 2632 (Francis Newton Thorpe ed., 1909).
278. Id. art. XXIII. The Council consisted of one senator from each district and the Governor.
279. See id.
280. Id. art. XXVIII.
281. 1 Corwin on the Constitution 354 (Richard Loss ed., 1981) (emphasis added). Nor were these the only similarities between Article II and New York's constitutional framework for executive power.
282. See Corwin, supra note 40, at 7 (explaining that the New York governor was elected, bore the title of Commander-in-Chief, and possessed a power to pardon) ;
283. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 31, at 416 (stating that "there is a close analogy between [the President] and a governor of New York").
284. See 1 Charles Z. Lincoln, The Constitutional History of New York 471-72 (1905) (describing John Jay, Robert Livingston, and Gouverneur Morris as exercising a "controlling influence in preparing" the New York State Constitution through their membership on the drafting committee).
285. See James Madison, Notes of Debates in the Federal Constitutional Convention of 1787, at 47 (Bicentennial ed., W. W. Norton 1987) (1893) ;
286. Records of the Federal Convention of 1787, supra note 2, at 67;
287. see also Gerhardt, supra note 100, at 19 (explaining that this proposal was generally intended to give the executive sole control over appointments).
288. Gerhardt, supra note 100, at 19. Even this proposal, however, contemplated a Senate role in other appointments.
289. See id.
290. Id. at 17.xf
291. Id. at 23.
292. See Strauss, Agencies, supra note 15, at 599 & n. 99.
293. 2 Records of the Federal Convention of 1787, supra note 2, at 335-36, 342-43 (proposing presidential appointment at pleasure for secretaries of domestic affairs, commerce, foreign affairs, war, marine, and state).
294. See id. at 158.
295. Id. at 335-42.
296. See id. at 538-39, 542 (reflecting James Wilson's preference for a council over a Senate role in appointments).
297. See, e.g., 1 id. at 66 (referring to the unitary executive as the "foetus of monarchy").
298. See id. at 66, 71-74, 88, 91-92;
299. id. at 335-37, 533, 537, 542;
300. see also Buckley v. Valeo, 424 U. S. 1, 129-31 (1976) (per curiam) (describing the provisions providing for shared presidential and senatorial appointment as a compromise arrived at after considering provisions giving the President sole control over some appointments and the Senate sole control over others).
301. See 1 Records of the Federal Convention of 1787, supra note 2, at 96 (distinguishing questions of the degree of executive power from the question of whether to have "co-ordinate heads" of the executive department) ;
302. see also id. at 63 (showing assignment of executive power and appointment power to an "executive" after postponement of a proposal to specify that the executive is unitary).
303. See id. at 66.
304. Cf. Strauss, Agencies, supra note 15, at 600 (acknowledging a decision to create a politically accountable unitary executive, but finding the Constitution "ambivalent" about the nature of the President's relationships with those actually administering the laws).
305. See 1 Records of the Federal Convention of 1787, supra note 2, at 96-97 (showing that a resolution favoring a unitary executive passed just after Wilson and Gerry had raised the nonagreement problem, with Gerry opining that this problem would be "extremely inconvenient in many instances, particularly in military matters") ;
306. id. at 105 (citing the prospect of "anarchy and confusion" from nonagreement of a plural executive just before a motion affirming the unitary choice carried) ;
307. see also Strauss, Agencies, supra note 15, at 600 (characterizing the choice of a single executive as a rejection of a large "executive body" (citing Charles C. Thach, Jr., The Creation of the Presidency, 1775-1789, at 89 (1923))).
308. See 2 Records of the Federal Convention of 1787, supra note 2, at 158 (proposing to "vest" the executive authority in the President but then imposing a duty to "attend to" the execution of the laws, rather than to actually carry them out) ;
309. Phelps, supra note 2, at 143 (discussing congressional abandonment during the Revolutionary War of "plural executives"-government by committee-in favor of "individual secretaries for war, marine, foreign affairs, and finance" (emphasis added)). Washington personally believed in a strong unitary executive model, where the President would have complete control over the executive branch of government, including appointments.
310. Id. at 142-49. But the Constitutional Convention rejected that model when it allowed the Senate a role in approving appointments and provided for impeachment.
311. See U. S. Const, art. I, § 2, cl. 6 (granting the Senate the "sole Power to try all Impeachments") ;
312. id. art. II, § 2, cl. 2 (providing for appointment "with the Advice and Consent of the Senate").
313. See Prakash, supra note 76, at 1996-97, 2002-03 (discussing "those who feared the specter of a large federal bureaucracy" often in the context of discussions of tax collection).
314. See id. at 2003-04 (explaining that both Federalists and Anti-Federalists "understood that state officers" would enforce federal law) ;
315. see also U. S. Const, art. I, § 8, cl. 15;
316. Max M. Edling, A Revolution in Favor of Government: Origins of the U. S. Constitution and The Making of The American State 101-28 (2003) ;
317. The Federalist Nos. 27, 36 (Alexander Hamilton), supra note 31, at 176 (stating that the government would employ each state's "ordinary magistracy" in "the execution of federal law and would give effect to the Constitution) ;
318. THE Federalist No. 29 (Alexander Hamilton), supra note 31 (explaining that in instances of disobedience and disorder state militiamen would serve under federal command) ;
319. THE Federalist Nos. 44, 45 (James Madison), supra note 31, at 289, 292 (respecting tax collection and state officers' "essential agency in giving effect to the... Constitution") ;
320. William C. Banks, Providing Supplemental Security-The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 J. Nat'L SECURITY L. & POL'Y (forthcoming 2009) ;
321. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 Yale L. J. 1256, 1343 (2006) (pointing out that use of state enforcers was viewed during the Federalist period "as a means of restraining" the federal government's power) ;
322. Stephen I. Vladeck, The Calling Forth Clause and the Domestic Commander in Chief, 29 Cardozo L. Rev. 1091, 1098 (2008) (pointing out that the debate over ratification focused on whether the state militia would be called out, with no room for the use of federal troops in the case of insurrection). The Constitution explicitly provides for presidential control over the state militias, but nowhere provides him with authority to direct state officials executing federal law absent an insurrection or rebellion necessitating a calling of a state militia into service.
323. See U. S. Const, art. II, § 2, cl. 1 (making the President "Commander in Chief of state militias when they are pressed into federal service).
324. See Prakash, supra note 76, at 2000 (pointing out that Alexander Hamilton and James Madison recognized that "the federal government would have no direct influence on the selection of state officers" (citing The Federalist No. 45 (James Madison)
325. supra note 31, at 291)).
326. See id. at 2001 (explaining that state officials have a duty to enforce federal law).
327. U. S. Const, art. VI, cl. 3.
328. See Ackerman, supra note 11, at 691 (pointing out that the Founders did not "have the slightest idea" that the federal government's civilian workforce would grow from the 2597 officials of 1802 to the 1, 872, 000 in 1997) ;
329. Gary Lawson, The Rise and Rise of the Administrative State, 1107 Harv. L. Rev. 1231, 1233-37 (1994) (discussing the federal bureaucracy's growth over time).
330. The Federalist No. 77 (Alexander Hamilton), supra note 31, at 464.
331. Id. No. 76 (Alexander Hamilton), supra note 31, at 458.
332. Id.
333. Id. No. 77 (Alexander Hamilton), supra note 31, at 459.
334. Id. (stating that "The consent of [the Senate] would be necessary to displace as well as to appoint") ;
335. cf. Seth Barrett Tillman, The Puzzle of Hamilton's Federalist No. 77, 33 Harv. J. L. & PUB. Pol'Y (forthcoming 2010) (manuscript at 1-15), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1331664 (conceding that the courts and commentators have read this passage as addressing removal, but arguing that in spite of the juxtaposition of "displace and appoint" the term "displace" might refer to removal through an appointment only).
336. THE Federalist No. 66 (Alexander Hamilton), supra note 31, at 404 (claiming that all state governments follow the practice of "rendering those who hold office during pleasure dependent on the pleasure of those who appoint them").
337. Id. No. 77 (Alexander Hamilton), supra note 31, at 459.
338. See, e.g., id. Nos. 66, 68-77 (Alexander Hamilton), Nos. 3, 4 (John Jay), Nos. 39, 47, 48 (James Madison), No. 18 (James Madison with Alexander Hamilton), supra note 31;
339. Prakash, supra note 76, at 2034 (characterizing the magistracy as "servants of the laws of the land, " rather than as sovereign (citing The Federalist No. 16 (Alexander Hamilton), supra note 31, at 117)). Prakash insists that the magistracy cannot "pick and choose" which laws to enforce.
340. Id. While he makes these remarks in the context of explaining why state judges and executive officers must enforce federal law under the Constitution
341. see id., The Federalist Papers clearly include the President as part of the magistracy, albeit as the Chief Magistrate.
342. See William N. Eskridge, Jr., & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation from Chevron to Hamdan, 96 Geo. L. J. 1083, 1170 (2008) (describing "vertical predictability"-the consistency of law over time-as an element of the rule of law).
343. See The Federalist No. 48 (James Madison), supra note 31, at 309-12 (discussing the legislature's superiority) ;
344. The Federalist No. 51 (James Madison), supra note 31, at 322 (stating that "[i]n republican government,... legislative authority... predominates") ;
345. see also Katyal, supra note 10, at 2317 (noting the Framers' assumption that "massive changes to the status quo required legislative enactments, not executive decrees").
346. Wood, supra note 8, at 165.
347. See PHELPS, supra note 2, at 81 (stating that "[t]he idea that there could be equally valid, but different, notions of the public interest" appeared nonsensical to Washington, because he believed in a single "public interest to which virtuous men could unanimously subscribe").
348. Id. at 139-42, 150-54 (describing Washington's approach to vetoes and legislative proposals). Washington generally vetoed domestic legislation only on constitutional grounds and let domestic measures he disagreed with pass.
349. Id. at 150-54. But he did veto measures implicating his foreign affairs power on policy grounds.
350. Id. at 153-54.
351. See 2 Records of the Federal Convention of 1787, supra note 2, at 109 (reporting Madison's description of the executive's powers as "limited") ;
352. cf. Strauss, Agencies, supra note 15, at 642 (arguing that the need for priority setting and coordination justifies presidential retention of "substantial lines of communication and guidance").
353. See Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of The Original Meaning of The United States Constitution, 87 B. U. L. Rev. 801, 812-17 (2007) (discussing the early publication history of these papers).
354. See McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316, 403-04 (1819) (pointing out that the Constitution "derives its whole authority" from state ratifying conventions, since "the people were at perfect liberty to accept or reject" the "mere proposal" the Framers made) ;
355. Gerhardt, supra note 140, at 3 (stating that the "convention delegates themselves recognized that their views on the meaning of the Constitution mattered less than the opinions of the ratifiers") ;
356. Calabresi & Prakash, supra note 14, at 551 (describing originalism as based on "the text of the Constitution, as originally understood by the people who ratified if (emphasis added)) ;
357. Powell, supra note 17, at 936-39 (explaining that Madison and other federalists argued that the intentions of the ratifiers, not the drafters, should guide constitutional interpretation) ;
358. cf. Calabresi & Prakash, supra note 14, at 612 (suggesting that Hamilton's remarks in The Federalist Papers have little probative value, because they seek to placate the Anti-Federalists).
359. See, e.g., 2 Records of the Federal Convention of 1787, supra note 2, at 64-69 (showing that advocates of a unitary executive sought to defeat the proposal to make the President impeachable) ;
360. id. at 538 (recounting objections to the Senate's role in appointments as "blending" legislative and executive power).
361. See, e.g., id. at 639 (describing the power of the Senate over appointments and thus over the executive branch as a substitute for the rejected constitutional council).
362. See generally Mashaw, supra note 167, at 1272 (describing Hamilton's defense of Article II in The Federalist Papers as an effort to assure doubters that the President would have modest power compared to the King of England).
363. See Bowsher v. Synar, 478 U. S. 714, 723-24 (1986) (explaining that the first Congress's acts constitute "weighty evidence" of the Constitution's meaning, because "many" of its members helped frame the Constitution).
364. Watson, supra note 74, at 1334.
365. Act of June 1, 1789, ch. 1, § 1, 1 Stat. 23 (regulating the time and manner of administering certain oaths).
366. Mashaw, supra note 167, at 1309 n. 167 (describing oaths as "serious business").
367. Id.
368. see also Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic 159-98 (2001).
369. Act of Mar. 2, 1799, ch. 22, § 20, 1 Stat. 627, 641-42 (regulating the collection of duties on imports and tonnage) ;
370. Act of Mar. 3, 1791, ch. 15, § 6, 1 Stat. 199, 200 (repealing duties on distilled spirits) ;
371. Act of Aug. 4, 1790, ch. 34, § 12, 1 Stat. 138, 142 (making provision for the payment of the United States' Debt).
372. See Mashaw, supra note 167, at 1317-18 (providing examples).
373. See Prakash, supra note 76, at 2000 (pointing out that the President exercised no control over state officers' appointment).
374. See Calabresi & Prakash, supra note 14, at 640-41.
375. Id. & n. 442 (discussing governors' willingness to enforce neutrality at Washington's request).
376. Act of Feb. 25, 1791, ch. 10, § 1, 1 Stat. 191 (incorporating subscribers to the Bank of the United States) ;
377. see Mashaw, supra note 167, at 1296 (describing the Bank as more independent of presidential direction than today's Federal Reserve).
378. See Act of Apr. 30, 1798, ch. 35, § 1, 1 Stat. 553, 553 (imposing a duty on the Secretary of the Navy to "execute such orders as he shall receive from the President") ;
379. Act of Aug. 7, 1789, ch. 7, § 1, 1 Stat. 49, 50 (codified as amended at 5 U. S. C. § 301 (2006)) (directing the Secretary of War to conduct the department's business according to the President's instructions) ;
380. Act of July 27, 1789, ch. 4, § 1, 1 Stat. 28, 28-29 (codified as amended at 22 U. S. C. § 2651 (2006)) (directing the Secretary for Foreign Affairs to perform duties "intrusted to him by the President" according to presidential instructions).
381. See Act of Sept. 2, 1789, ch. 12, 1 Stat. 65, 65-66 (codified as amended in scattered sections of 31 U. S. C.) ;
382. Act of May 8, 1794, ch. 23, § 3, 1 Stat. 354, 357;
383. Charles Tiefer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B. U. L. Rev. 59, 74 (1983) (explaining how Congress made the Comptroller General independent of presidential direction).
384. See Mashaw, supra note 167, at 1284-89 (describing these duties and the complex mix of independence, congressional direction, and presidential control employed in the enactments establishing these departments and their duties).
385. See Casper, supra note 105, at 237 (identifying the "multitude of views expressed" about separation of powers as the most significant aspect of the House debate).
386. See id. at 234-35 (summarizing the various positions).
387. See 1 Corwin, supra note 148, at 331-32 (claiming that only a small minority of the House found that the President's power under Article II entitled him to have sole removal authority) ;
388. cf. Froomkin, supra note 16, at 795 n. 37 (criticizing Chief Justice William H. Taft's reasoning in Myers v. United States as exaggerating the "degree of unanimity" in the Decision of 1789).
389. See Act of Sept. 2, 1789, ch. 12, § 7, 1 Stat. 65, 67 (establishing the Treasury Department and giving the Assistant Treasury Secretary custody of papers if the President removes the Treasury Secretary) ;
390. Act of Aug. 7, 1789, ch. 7, § 2, 1 Stat. 49, 50 (establishing the Department of War and giving an inferior officer custody of papers whenever the President removes the Secretary of War) ;
391. Act of July 27, 1789, ch. 4, § 2, 1 Stat. 28, 29 (establishing the Department of Foreign Affairs and giving the Chief Clerk custody of foreign papers if the President removes the Secretary of Foreign Affairs). Professor Prakash claims that this language indicates a belief that the Constitution granted the President a removal authority, so that congressional delegation of such an authority was either unnecessary or inappropriate.
392. See Prakash, supra note 51, at 1026. Most scholars who have seriously considered the issue, however, disagree, arguing that the bill does not reflect majority support for the notion of a constitutional power of removal.
393. See 1 Corwin, supra note 148, at 332;
394. David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 41 n. 240 (1997) ;
395. Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 662-63 (2004). In any case, the closeness of the vote and the disparity of opinions expressed in the House show that no consensus existed among the participants in this debate.
396. See Bradley & Flaherty, supra, at 658 (finding no consensus, or even majority support, for the thesis that the Vesting Clause implied that the Constitution requires the President to have a removal authority).
397. Prakash, supra note 51, at 1033 (explaining that the Senate deleted the
398. See id. at 1032-33 (discussing the Senate's treatment of the bills on Foreign Affairs and the Treasury).
399. Cf. Strauss, Agencies, supra note 15, at 604 (arguing, from a much later perspective, that execution of the law carries with it "a policy function" within statutorily defined bounds).
400. See, e.g., 1 Annals OF Cong., supra note 105, at 379, 387 (statement of James Madison) (describing the President's responsibility as that of superintending executive officers to ensure "good behaviour") ;
401. see also 1 Op. Att'y Gen. 624-26 (1823) (describing the President's duty as ensuring honest execution of the law, not perfectly correct judgment) ;
402. Leonard D. White, The Federalists: A Study in Administrative History, 1789-1801, at 287-88 (First Free Press Paperback ed. 1965) (noting that President John Adams removed officers for administrative neglect and delinquency).
403. Cf. Ackerman, supra note 11, at 636-42 (proposing to advance critical thinking about the merits of competing arrangements of power).
404. See Savage, supra note 12, at 335-36 (discussing David Addington's statement that '"[w]e're going to push and push'" with respect to expanding presidential power, '"until some larger force makes us stop'").
405. Cf. Ackerman, supra note 11, at 641 (claiming that the United States has an "excessively politicized style of bureaucratic government").
406. See Savage, supra note 12, at 14-37 (contrasting the Framers' modest conception of the presidency with subsequent growth in the office's power) ;
407. Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L. J. 1725, 1816-17 (1996) ;
408. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 125 (1994) (stating that the expansion of presidential power implies that his power, rather than that of the legislative branch, needs checking) ;
409. William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B. U. L. Rev. 505, 506 (2008) (claiming that presidential power has been expanding since the Founding).
410. See Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 1022 (1997) (chiding the Supreme Court for forgetting "the contemporary reality" that Congress has delegated much of its lawmaking power to the executive branch) ;
411. Katyal, supra note 10, at 2320 (tracing the growth of presidential power largely unchecked by Congress to the nondelegation doctrine's collapse in the 1930s and the Supreme Court invalidation of the legislative veto in INS v. Chadha).
412. See, e.g., Goldsmith, supra note 11, at 32 (explaining that the executive branch usually decides legal issues related to war and intelligence for itself, because such issues rarely reach a court).
413. See David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 Cornell L. Rev. 808, 858-59 (2004) (explaining that remands often do not specify cases' final outcomes).
414. Johnsen, supra note 10, at 1562-63 (explaining the limitations on congressional oversight, impeachment, funding, and justiciability) ;
415. Froomkin, supra note 16, at 797-98 (explaining that congressional threats to cut off funding "on any project of political significance" lack credibility).
416. See Goldsmith, supra note 11, at 33 (discussing the danger of the executive branch "interpreting the law opportunistically to serve its own ends") ;
417. Ackerman, supra note 11, at 700, 712 (explaining that Presidents tend to "politicize the bureaucracy" in order to carry out their programs, especially when the President cannot obtain his goals through legislation).
418. See Goldsmith, supra note 11, at 183 (explaining that "[t]he President's control over the military and intelligence agencies, his ability to act in secret, and his power to selfinterpret legal limits on his authority create extraordinary opportunities for abuse") ;
419. see also Katyal, supra note 10, at 2343-45 (discussing the need to check the modern executive, which conducts its business in secret and possesses far more power and resources than the Framers anticipated) ;
420. cf Ackerman, supra note 11, at 645-46 (noting that constitutions in Latin America emulating the American presidential model have all led, at one time or another, to dictatorship).
421. See Ackerman, supra note 11, at 689 (stating that "[u]nfettered political intervention" has "predictably toxic effects on the rule of law").
422. See Eskridge & Baer, supra note 180, at 1174-75 (discussing an agency tendency toward "tunnel vision") ;
423. Strauss, Agencies, supra note 15, at 586 (describing civil servants as knowing the statutes they administer in detail and often holding "strong views of the public good in the field in which they work").
424. See Strauss, Agencies, supra note 15, at 604 (arguing that the Constitution envisions shifts in the relative strength of the President and Congress over time).
425. Cf. William C. Banks & Peter Raven-Hansen, National Security Law and the Power of the Purse 160 (1994) (pointing out that vetoes are so difficult to override that a threatened veto usually suffices to force a "change [in] the shape of a bill").
426. See 28 U. S. C. § 599 (2006).
427. See Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting).
428. See Bruff, supra note 32, at 437 (arguing that a true dilemma underlies the independent counsel provisions, since "[p]owerful personal and political loyalties" can lead to underprosecution of executive branch officials).
429. See S. Rep. No. 95-170, at 1 (1978), reprinted in 1978 U. S. C. C. A. N. 4216, 4217 (stating that the purpose of the Ethics in Government Act is "to preserve and promote the accountability and integrity of public officials"). The majority did not rely on deference to congressional views to justify the Court's opinion.
430. See Morrison, 487 U. S. at 670-74 (discussing the Appointments Clause issue with no reference to the values underlying the clause). Justice Scalia praised the majority for not deferring to Congress, stating that such deference is not appropriate when the two branches are in disagreement.
431. See id. at 704-05 (Scalia, J., dissenting). Morrison, however, did not present a dispute between the executive branch and Congress, but rather a dispute among executive branch officials, namely the special prosecutor and the executive branch officials she was investigating.
432. See id. at 665-68 (showing that this case arose out of an effort by three government attorneys under investigation by independent counsel Morrison to quash a subpoena). The President was not a party to this suit. Moreover, the President had signed this legislation. Remarks on Signing S. 555 into Law
433. Weekly Comp. Pres. Doc. 1854, 1855 (Oct. 26, 1978) (characterizing the Special Prosecutor as a "necessary... response" to past embarrassments) ;
434. Devins, supra note 15, at 283-84 (noting President Ronald Reagan's approval of a legislation ceding executive authority to the independent counsel). Scalia's remarks provide an inadequate rationale for not seriously considering whether the Court should defer, at least to some extent, to the political branches' agreement that this reform would serve the rule of law.
435. See Morrison, 487 U. S. at 727-33 (Scalia, J., dissenting) (discussing the theoretical potential for vigorous prosecution of fairly minor offenses without any examination of the actual experience under the statute) ; cf. Bruff, supra note 32, at 437 (noting lawyers' tendency to be overzealous).
436. See Morrison, 487 U. S. at 685-86 (upholding provision authorizing only for-cause removal of an independent counsel) ;
437. Wiener v. United States, 357 U. S. 349, 356 (1958) (holding that the President may not fire a member of the War Claims Commission, even though no statute limited removal) ;
438. Humphrey's Ex'r v. United States, 295 U. S. 602, 628-29 (1935) (holding that Congress may limit the grounds for removing a member of a quasilegislative or quasi-judicial agency).
439. 272 U. S. 52 (1926).
440. See Morrison, 487 U. S. at 688-89 (discussing appellee's contention that the President must be able to remove purely executive officers at will under Myers).
441. See Myers, 272 U. S. at 107, 162 (showing that the Court invalidated a provision requiring Senate approval of presidential removal decisions, because the President alone has removal power).
442. See Morrison, 487 U. S. at 687 n. 24 (describing "the only issue actually decided in Myers" as whether the President could remove a postmaster without the Senate's consent) ;
443. Humphrey's Ex V, 295 U. S. at 626 (same).
444. Morrison, 487 U. S. at 691 (emphasis added).
445. Id. at 711-12 (Scalia, J., dissenting) ;
446. accord Bruff, supra note 32, at 442 (describing the test as generally "quite difficult to apply") ;
447. Erwin Chemerinsky, Constitutional Law: Principles and Policies 354 (3d ed. 2006) (describing this test as neither "clear" nor "easy to apply").
448. Cf. Myers, 272 U. S. at 134 (justifying at-will removal by reference to the President's "discretion" to determine the "national public interest").
449. See Morrison, 487 U. S. at 687 (stating that Congress may limit the removal of officers, "at least" if they are performing quasi-judicial or quasi-legislative functions) ;
450. Wiener v. United States, 357 U. S. 349, 353 (1958) (defining the issue before the Court in terms of the officer's function) ;
451. Humphrey's Ex'r, 295 U. S. at 627 (distinguishing Myers as an opinion pertaining to an officer "restricted to... executive functions").
452. See Morrison, 487 U. S. at 689 n. 28 (recognizing "[t]he difficulty of defining such categories") ;
453. Ex Parte Siebold, 100 U. S. 371, 397 (1879) (same) ;
454. Strauss, Agencies, supra note 15, at 579 (stating that the separation-of-powers theory "breaks down" when applied to "agencies within one of the three branches").
455. Compare Myers, 272 U. S. at 134 (claiming that the President must have the authority to fire those he loses confidence in)
456. with Morrison, 487 U. S. at 691-92 (upholding provisions forbidding at-will removal of the independent counsel)
457. and Humphrey's Ex V, 295 U. S. at 629 (upholding provisions forbidding at-will removal of a member of the Federal Trade Commission).
458. See Morrison, 487 U. S. at 687 (disapproving of Myers's dicta to some extent, but stating that for-cause removal is constitutional "[a]t least in regard to 'quasi-legislative' and 'quasi-judicial' agencies") ;
459. Humphrey's Ex'r, 295 U. S. at 626 (disapproving of unidentified statements supporting the government's argument for at-will removal "[i]n so far as they are out of harmony with the views here set forth") ;
460. cf. id. at 627 (acknowledging that dicta need not be followed unless persuasive).
461. See generally Froomkin, supra note 16, at 789 (noting that "autonomy requires insulation from politically motivated removal").
462. Cf Myers, 272 U. S. at 108-39 (providing a brief discussion of constitutional text and pre-enactment history and a lengthy discussion of the post-enactment Decision of 1789).
463. See Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees, 124 U. Pa. L. Rev. 942, 947-61 (1976) (discussing the history of civil service reform) ;
464. Strauss, Agencies, supra note 15, at 582 (characterizing a "civil service, largely insulated from politics" as the "fourth effective branch" of government).
465. Compare Strauss, Agencies, supra note 15, at 608 (explaining that the civil service laws sharply limit presidential control of civil servants), with Calabresi & Yoo, supra note 18, at 230 (recognizing that "expansion of the civil service is often perceived as inconsistent with the unitariness of the executive branch, " but opining that this perception is not correct).
466. See generally Daniel Richman, Political Control of Federal Prosecutors: Looking Back and Looking Forward, 58 Duke L. J. 2087, 2091 (2009) (claiming that "decisions about enforcement-power allocation" are "inextricably intertwined with preferences about priorities").
467. Morrison, 487 U. S. at 712 (Scalia, J., dissenting).
468. See Office of Prof'l Responsibility & Office of Inspector Gen., U. S. Dep't of Justice, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General 135-39 (2008), available at http://www.usdoj.gov/opr/goodling072408.pdf (concluding that Monica Goodling and others committed numerous violations of the civil service law requiring nonpartisan hiring practices) ;
469. Office of Prof'l Responsibility & Office of Inspector Gen., U. S. Dep't of Justice, An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program 99 (2008), available at http://www.usdoj.gov/opr/oig-opr-investigation-hire-slip. pdf (finding political hiring practices that violated civil service law and Justice Department policy).
470. Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U. S. Attorneys?: Hearings Before the S. Comm. on the Judiciary, 110th Cong. 411 (2007) (testimony of Sara M. Taylor, Former Deputy Assistant to President Bush and Director of Political Affairs at the White House).
471. See id. at 416-17.
472. Cf. Savage, supra note 12, at 239-40 (noting that President Bush used a signing statement to argue that the President need not obey laws establishing minimum professional qualifications for Federal Emergency Management Agency employees).
473. Myers v. United States, 272 U. S. 52, 173-74 (1926) (affirming that Congress may attack the spoils system through civil service reform).
474. Id.
475. accord Strauss, Agencies, supra note 15, at 614 (describing Myers as recognizing that Congress may place the Postmaster General beyond presidential control by making him part of the civil service).
476. U. S. Const, art. II, § 2, cl. 2.
477. Id.
478. Morrison v. Olson, 487 U. S. 654, 671 (1988).
479. See id. (acknowledging that the "line" between inferior and principal officers is unclear).
480. See id. at 716 (Scalia, J., dissenting).
481. See id. at 670, 672.
482. See Bruff, supra note 32, at 403 (characterizing the arguments on this point as "approximately in equipoise").
483. See, e.g., Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 126 (1988).
484. See Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B. U. L. Rev. 459, 459 (2008).
485. See id. at 462 (characterizing "partisan requirements... and for-cause limits" on removal as intended to limit presidential control).
486. Stack, supra note 122, at 298;
487. see also Terry M. Moe, Regulatory Performance and Presidential Administration, 26 Am. J. Pol. Sci. 197, 207-18 (1982) (finding a correlation between presidency changes and independent agency policy shifts) ;
488. Terry M. Moe, The Politicized Presidency, in NEW DIRECTION IN AMERICAN POLITICS 235, 269-71 (John E. Chubb & Paul E. Peterson eds., 1985) (finding greater presidential than congressional control over the federal bureaucracy) ;
489. Strauss, Agencies, supra note 15, at 590-96 (discussing sources of presidential influence over independent agencies) ;
490. B. Dan Wood & Richard W. Waterman, The Dynamics of Political Control of the Bureaucracy, 85 Am. Pol. Sci. Rev. 801, 812-23 (1991).
491. 343 U. S. 579 (1952).
492. Id. at 587-88 (claiming that the President's faithful execution power "refutes the idea that he is to be a lawmaker").
493. See Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 Hastings Const. L. Q. 13, 17 (1974) (describing how power has flowed to the President through delegations and acquiescence).
494. See 1 Corwin, supra note 148, at 318-20 (explaining why it is desirable to create independence for officials carrying out quasi-judicial or quasi-legislative functions).
495. Accord Bruce Ledewitz, The Uncertain Power of the President To Execute the Laws, 46 Tenn. L. Rev. 757, 773 (1979) (pointing out that quasi-legislative and quasi-judicial power are "not now considered... part of the executive power" and are therefore beyond the "President's reach").
496. Contra Calabresi & Rhodes, supra note 15, at 1183 n. 153 (arguing that powers exercised by bureaucrats must be executive, because Congress may only delegate executive power).
497. 295 U. S. 602 (1935).
498. 357 U. S. 349 (1958).
499. See Wiener, 357 U. S. at 352, 356 (recounting Humphrey's repudiation of Myers's dicta and holding that the President lacked authority to remove a quasi-judicial member of the War Claims Commission) ;
500. Humphrey's Ex'r, 295 U. S. at 626-29 (finding that Congress could protect officers exercising quasi-legislative and quasi-judicial powers from presidential removal and repudiating dicta in Myers to the extent inconsistent with its opinion).
501. See Morrison v. Olson, 487 U. S. 654, 705 (1987) (Scalia, J., dissenting) (arguing that the President's lack of "exclusive control" violates the Constitution in this case because prosecution is a "purely executive power").
502. Of course, the Supreme Court has held that Congress may not delegate legislative authority to anybody, even the President.
503. See Schechter Poultry Corp. v. United States, 295 U. S. 495, 537-38 (1935) (holding that the Congress may not delegate its legislative authority to the President) ;
504. Panama Refining Co. v. Ryan, 293 U. S. 388, 421 (1935) (holding that Congress may not delegate its "essential legislative functions" to others). It permits, however, delegation of quasi-legislative authority because of the difficulty of defining the difference between executive and legislative authority.
505. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474-75 (2001) (explaining that the Court has '"almost never felt qualified to second-guess'" congressional judgments about the degree of discretion to leave agencies (quoting Mistretta v. United States, 488 U. S. 361, 416 (1989) (Scalia, J., dissenting))) ;
506. Mistretta, 488 U. S at 371-79 (affirming delegation of power to a commission to establish ranges of sentences for numerous federal crimes). Having permitted broad delegation in practice, insisting on presidential control of that delegation would further erode the principal of congressional control of legislation that justifies the nondelegation doctrine. Cf. Strauss, Agencies, supra note 15, at 637 (finding presidential rulemaking "problematic").
507. But see Mashaw, supra note 167, at 1301-02 (describing the early Republic as employing the use of "Boards of Eminent Officers" to carry out various administrative functions (emphasis omitted)).