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The Imperial Presidency's New Vestments

31 Pages Posted: 16 Jan 2016 Last revised: 20 Jan 2016

A. Michael Froomkin

University of Miami - School of Law

Date Written: 1994

Abstract

All but two officials in the executive branch occupy posts and exercise powers that owe their existence to an act of Congress, yet the extent of Congress's power to give top executive branch officers protection from dismissal for policy differences with the President remains contested. Justice Scalia has suggested in forceful dissents that the Constitution gives the President the power to make all policy choices delegated by Congress to the executive branch, and that restrictions on the President's power to fire policy-making persons are therefore unconstitutional. This view has recently been restated by Professor Steven Calabresi and Mr. Kevin Rhodes in The Structural Constitution, which purports to find structural constitutional support for Justice Scalia's view that Congress may not vest any policy-making discretion in the hands of executive branch officials who are not subject either to presidential commands or to presidential dismissal.

Part I of this Article summarizes the debate about the extent of Congress's power to restrict the President's power over officials in the executive branch. Part II summarizes and critiques Professor Calabresi and Mr. Rhodes's main contentions regarding the importance of certain clauses in the Constitution, and the interplay between Article II and Article III. In Part II, I suggest that The Structural Constitution's argument for absolute presidential control over the executive branch asks the wrong question and, even on its own highly textualist terms, comes up with implausible answers.

Having criticized The Structural Constitution for not being structural enough, Part III offers the outline of a truly structural approach to the constraints on Congress's ability to design the executive branch. Contrary to what Professor Calabresi and Mr. Rhodes suggest, a proper structural analysis of the Constitution undermines the constitutional case for an executive branch with a chain of command organized along military lines and instead emphasizes the existence of a discernible balance between Congress's role in structuring the executive and the President's inherent and default powers. I argue that this more contextual approach better comports with both constitutional text and the holdings (but not always the reasoning) of all the relevant Supreme Court decisions and furthers the most important objective that the separation of powers is designed to serve, that of hindering tyranny.

Keywords: presidency, constitutional law, Rhodes, Calabrese, structural analysis, Constitution, Scalia, executive power

Suggested Citation

Froomkin, A. Michael, The Imperial Presidency's New Vestments (1994). Northwestern University Law Review, Vol. 88, p. 1346, 1994. Available at SSRN: https://ssrn.com/abstract=2715759

A. Michael Froomkin (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-4285 (Phone)
305-284-6506 (Fax)

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