//  3/9/20  //  Commentary

As I have noted before on this blog (here and here), one of the most important constraints on modern presidents is Congress’s power to vest duties in offices other than the presidency.   

By vesting statutory power in, say, the Attorney General or Secretary of Health and Human Services, Congress makes that officer, rather than the president alone, accountable for performance of those duties.  The President may have authority to fire the officer, but if doing so is the President’s only means of getting his way, the officer may enjoy significant leeway to exercise his or her authorities independently. 

This structure gives the Senate, as well as the President, a say in who exercises key governmental powers.  It also enables what I have called the “fire alarm function” of office-holding. By quitting or forcing the President to fire them rather than follow an unwise or unlawful order, officers may raise an issue’s political salience.  Doing so may effectively sound an alarm that brings political pressure to bear on the President to change course.

Although some argue instead that the President may personally exercise any power vested in federal executive officers, this view is mistaken, and the current pandemic illustrates why the difference matters.  As readers likely know, the President’s public comments on the pandemic have not inspired confidence.

In a crisis like this one, it would obviously be optimal to have effective and capable presidential leadership.  Absent that, however, and perhaps even when it is present, it may help ensure competent and responsible governance if key authorities are vested in offices other than the President, such as in this case the Secretary of Health and Human Services or Director of the Centers for Disease Control and Prevention.  Those officers may then exercise their powers as they judge best, subject to ultimate termination by the President if he deems their performance unsatisfactory. 

In normal circumstances, executive officers will employ their powers in accordance with presidential directions.  In unusual or extreme cases, however, the freedom to choose a different course, even on pain of termination, may impose a useful constraint on misguided presidential actions. 

Congress could take this principle even further.  In a forthcoming article, I argue that Congress may vest not only administrative authorities, but also military and national security ones in officers other than the president.  Accordingly, to give a few examples, Congress could vest authority to launch nuclear weapons or an offensive cyber operation in the Secretary of Defense or even an Assistant Secretary; it could likewise vest control over certain forces or military decisions in particular military commanders in the field.  

Though most modern commentary presumes that Presidents have greater authority over the military than civil administration, statutes vesting military duties in particular offices are entirely consistent with the constitutional text and structure, as well as historical practice.  Congress has restructured the military chain of command multiple times across American history.  Both now and in the past it has also vested certain military responsibilities in particular officers.  As Commander in Chief, the President must have some power to remove or otherwise discipline officers who defy his orders.  But vesting key powers in someone else in this way once again places useful friction between presidential desires and concrete government actions.

Anyone concerned about the President Trump’s erratic decision-making should value the framers’ foresight in granting Congress this power. But the point is hardly limited to the current president.  We may well have other unfocused figurehead presidents in the future.  At the least, neither Joe Biden nor Bernie Sanders strike me as likely to be deeply involved in policy details, nor perhaps even well-suited to making certain key decisions.  Much like Trump, they would likely serve as figureheads—accountable stand-ins for a political program and set of public promises that other officials would seek to implement, within confines imposed by the law, Congress, courts, and public opinion.

In this environment, vesting powers by statute in non-presidential offices need not create an unaccountable “deep state” that acts independently of political control.  On the contrary, by helping make officials responsible to Congress and the public as well as the president, prudently allocating official duties within the executive branch may help ensure more responsive and accountable federal governance.  That could be a valuable achievement indeed amid this pandemic and any other crises that befall the Republic in our troubled era of polarized and unstable politics.


How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

How To Decide A Very Close Election For Presidential Electors: Part 3

10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?

How To Decide A Very Close Election For Presidential Electors: Part 2

10/23/20  //  In-Depth Analysis

The Kennedy-Nixon election in 1960 in Hawaii went to a recount. How Hawaii dealt with it—with two sets of electors casting two sets of electoral votes—provides a model for how to handle very close elections.