Presidents, Opinions, and Independent Officers (with Appointment Clause Addendum)

Abstract

The Opinions in Writing Clause is a persistent textual problem for the claim that Article II implies an indefeasible removal power: If the Framers believed they had given the president an unconditional removal power, why would they also specify a lesser power merely to ask for opinions? New historical research confirms this textual problem was also contextual: early state constitutions, the Ratification debates, and the First Congress indicate that the Opinions Clause's original public meaning signaled independence of department heads, or at least the possibility of congressional requirements like good cause.

Legal scholars have already shown that the texts of early state constitutions did not reflect an expansive meaning of “executive power” to control state administration.  My research confirms this interpretation and offers two additional observations: the first about the failure of the Founding generation to address or clarify a relationship between executive power and “removal” after the “Indecisions of 1789” made this problem clear; and second, before and after 1787, there was a correlation between constitutions that had opinions clauses (or parallel “information” clauses) and structures of decisional independence, a context of an officer or a council needing a power to ask other officers for opinions or information because they did not otherwise control those officers.

The choice of the title “president,” rather than “governor” or other titles with more of a chief executive connotation, is consistent with these textual and structural inferences. Whereas governors were chief executives with singular power in a hierarchy, officers titled “president” presided over bodies as a member of those bodies, such as courts (e.g., the judicial Lord President), corporate boards, university boards, or – especially relevant for original public meaning, the Articles of Confederation Congress. Such presidents “presided” in mostly a procedural manner, similar to a Chief Justice or a Speaker of the House, while substantively, they usually shared the same powers and had a vote of equal weight among the other members of body. Surely the Framers intended more executive power and more hierarchy than the title generally connoted, but the choice of this particular title signaled less executive authority than we associate with the title “president” almost 250 transformational years later.  It is a title that is more consistent with the structure implied by the Opinions Clause of at least a semi-independent relationship between the president and the department heads.

An addendum addresses problems with the unitary theorists' reliance on the Appointments Clause, which is an out-of-context misreading of my research.

Keywords: Presidential power, Constitutional Law, Administrative Law, Removal, Executive Power