Document Type

Working Paper

Publication Date

3-13-2013

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; Political Institutions eJournals; Humanities Network; Political Science Network

Abstract

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

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