//  5/23/18  //  Commentary

As people think about whether Congress can and should do more to protect the Mueller investigation from presidential interference, attention often turns to Justice Scalia’s dissent in Morrison v. Olson.  In that dissent, Scalia famously argued that Congress cannot constitutionally vest control of a federal investigation in officials not answerable to the President.  Investigation, the argument runs, is an executive power, and the Constitution, in Article II, Section 1, provides that “The executive power shall be vested in a President of the United States.”  Lots of people love that Scalia dissent, and it’s easy to see why.  It’s sharp and alive and so well argued, and its basic contention lines up bracingly with the Constitution’s text.  I remember the first time I read that opinion, as a student, and I thought it was just great. 

Partly because that opinion is so compelling when taken on its own terms, and partly because of the apparent simplicity of the point about Article II, Section 1, it’s easy to see why many smart lawyers believe that the text of that Section just settles the issue.  As Scalia put the point, “The executive power shall be vested in a President of the United States” doesn’t mean that some of the executive power shall be vested in the President.  It means that all of the executive power is vested in the President.  And that means that a federal investigation can’t be insulated from Presidential control.  It’s a pretty straightforward contention.  So it is perhaps not surprising that good lawyers in good faith sometimes seem to believe that anyone who thinks that an investigative function can be insulated from Presidential control either hasn’t read Section 1, or can’t understand simple English, or doesn’t care what the Constitution says. 

The point of this post, therefore, is to note that there’s a pretty distinguished roster of people who haven’t understood Section 1 to mean what Scalia said it meant.  I don’t mean merely to point to Chief Justice Rehnquist, who wrote the majority opinion in Morrison, and all the other Justices who participated in that case other than Scalia, all of whom joined Rehnquist’s opinion.  I mean to point, pretty broadly, to the generation of the Founders. 

As a general matter, Americans conversant with the Constitution during the ratification process and shortly thereafter did not think that the Constitution vested all executive power in the President.  They thought that some executive power was vested elsewhere.  Some of them thought that was a good thing, and some of them thought that was a bad thing.  But as to the basic fact—that the Constitution vested some executive powers outside the institution we call “the Executive Branch”—there was widespread agreement.

An easy example is the appointment power.  Most modern Americans probably think of the power to appoint as executive and the power to confirm as something else.  After all, the President does the first thing, and the Senate does the second, and we are accustomed to think of “things the President does” as “executive” and “things that decisionmakers other than the President does” as “not executive.”  But at the Founding, most Americans understood the power of appointment (including confirmation) as an executive power that was divided between the President and the Senate.  In the prevailing Founding-era view, that is, the Senate as well as the President would exercise executive power in the appointment process, with the Senate’s exercise of executive power coming in the phase of that process involving confirmation. 

Antifederalists like Richard Henry Lee saw that vesting of executive power in the Senate as a vice in the proposed Constitution.[1]  Federalists like Hamilton argued to the contrary that the division of executive power between two branches was a positive virtue, because it would make tyrannical designs more difficult to realize.[2] . Madison similarly took the view that the Senate’s role in appointments involved the exercise of executive power.[3] In Madison’s view, and in Hamilton’s, these allocations of executive power to decisionmakers other than the President were not violations of any separation-of-powers principle.  The best understanding of that principle, in their view, was not that each institution exercises one “kind” of power and one kind only: it’s that no single institution wields all legislative and executive power, and that various powers are vested in various places so as to let institutions check and balance one another.[4]

All of these Founders had read Article II of the Constitution.  None of them seemed to think that Article II, Section 1 contradicted the plain fact, as they regarded it, that not all of the executive power was vested in the President.  They didn’t articulate their reasons for thinking that there was no contradiction between the text of Section 1 and the fact that some executive power was vested elsewhere: they don’t seem to have perceived a problem, so they had no need to articulate solutions.  If we could ask them, maybe they’d say that Section 1 doesn’t say “All of the executive power shall be vested in a President of the United States,” or maybe they’d say that Section 1 should be understood more as a subject heading for Article II than as a strict statement about the content of presidential power, or maybe they’d say something else.  We can’t know for sure.  What we know pretty clearly, though, is that they understood the Constitution to vest executive power in the President and also not in the President.

This fact about original understandings doesn’t begin to settle the constitutional questions that arise when Congress considers taking actions to insulate an investigation from Presidential control, and for a whole host of reasons.  Maybe constitutional questions shouldn’t be settled by reference to original understandings.  Maybe the fact that the Constitution vests some executive powers outside the “Executive Branch” doesn’t mean that it’s also appropriate for other executive powers to be located outside that branch.[5]  And even if the Constitution permits executive powers beyond those clearly vested elsewhere to be exercised by actors other than the President, maybe it shouldn’t be understood to permit this or that executive power to be so exercised.  We’d have to think about the particulars, using the best resources of constitutional reasoning—chiefly including, in a case like this, structural considerations about what the system of checks and balances ought to deliver and how it can best go about doing so.

Whatever conclusions one might reach in the course of such an analysis, the point here is that such an analysis is necessary.  The plain text of Section 1 does not shut off that inquiry; it is not the case that anyone who reads that text should immediately understand that no power that is executive in its nature can be constitutionally exercised by someone who is neither the President nor accountable to the President.  To say otherwise is to say that neither Madison nor Hamilton nor the Founding generation generally was competent at reading the Constitution. 


[1] See I DHRC 338-39.

[2] XXII DHRC 1953

[3] See, e.g., I Annals of Congress 463-64.

[4] For one good statement of this view by Madison, see Federalist 47.

[5] That was Madison’s position, at least some of the time: in 1789, when Congress debated whether the President could unilaterally remove cabinet secretaries, Madison argued that Section 1 should be understood to vest in the President all those executive powers not clearly vested elsewhere.  Some of his congressional colleagues agreed with that proposition, and others did not.  (Madison’s side prevailed on the point that the President should have the power to remove officers unilaterally, but there is no way to know how many Members of Congress who voted for that position did so because they accepted this particular argument about executive power.)

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