Speech and Silence in American Law, pp. 83-105 (Cambridge University Press 2010 (Austin Sarat, ed.)
24 Pages Posted: 13 Mar 2013
Date Written: 2010
Formalists and functionalists generally agree that both the language of Article II and the practical need for an effective institutional counterweight to Congress support, at least to some degree, the unitary executive theory. The Vesting and Faithful Execution Clauses plainly anticipate that the President will have some measure of control over the operations of the Executive Branch. On the other hand, however, the Appointments Clause and the Opinion Clause suggest that presidential oversight could be, at least to some degree, attenuated. If the President could directly control all executive personnel, why would the Framers have thought it necessary or prudent to grant the President an express power to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices”? Moreover, the Take Care Clause uses the passive, rather than the active, voice in describing the President’s duties – the President “shall take Care that the Laws be faithfully executed.” Strictly speaking, this Clause does not say that “The President shall faithfully execute the laws.” When significant policy disputes arise between the President and principal executive officers subject to direct presidential removal, this Essay argues that the President must enjoy a power of removal, but that the power to remove an executive officer does not necessarily imply a power to control directly an appointee who has failed, in the President’s view, to properly discharge the duties of her office. The structure of Article II supports some measure of independence, even for executive officers who serve at the pleasure of the President, concurrently with a power and responsibility vested with the President to hold executive officers accountable through the removal power. Thus, ultimate presidential control must exist, but this power may be somewhat attenuated without violating Article II’s strictures.
Keywords: constitutional law, separation of powers, unitary executive, Faithful Execution, president, presidency, accountability, democracy, constitutionalism, government structure, administrative law, cabinet, resignations, Opinions Clause, executive branch, oversight
Suggested Citation: Suggested Citation
Krotoszynski Jr., Ronald J., Resignations, the (Quasi) Plural Executive, and a Critical Assessment of the Unitary Executive Theory (2010). Speech and Silence in American Law, pp. 83-105 (Cambridge University Press 2010 (Austin Sarat, ed.); U of Alabama Legal Studies Research Paper No. 2232139. Available at SSRN: https://ssrn.com/abstract=2232139