America's Unwritten Constitution: The Precedents and Principles We Live By (63 page)

Note first how agency officials are
appointed
. The top members of so-called independent agencies are never directly named by Congress or by any subpart thereof. Rather, these officials are invariably appointed by the president, with Senate confirmation, in precisely the manner prescribed by Article II for all high-level executive-department officers. The point is not that Congress has never attempted to overleap these constitutional walls. It has indeed tried—and dramatically failed. For example, in 1974 Congress enacted an intricate federal campaign-finance law and created
a Federal Election Commission, which was vested with the classic executive functions of enforcing the statute and filling in statutory gaps via the promulgation of legally binding rules and regulations. These are precisely the sort of tasks that may be given to executive officers under Article II, yet under the terms of the statute, none of the six voting members of the commission were to be appointed in the constitutionally correct way. Rather, the statute said that two members were to be formally named by a
Senate leader
, two others by
the speaker of the House
, and the final two by the president—with all six members to be confirmed by
both
houses of Congress. When the statute reached the Court, the justices disagreed about several knotty campaign-finance issues raised by the law, but were united in striking down these outlandish appointments rules, which were quickly corrected by new legislation.
⁵⁶

Note next how independent-agency officials may be
removed
. Nothing in the written Constitution allows both houses of Congress, acting together without the president, or either house acting alone, or any subset of either house, to remove any executive officer—except, of course, via the impeachment process. Ordinarily, Congress must act by law—via bicameralism and presentment. In perfect harmony with this basic structure, independent-agency officers have never been removable by the legislature alone or by any subpart. Nor has the Senate succeeded in reserving to itself a role alongside the president in making removal decisions. Though the written Constitution might arguably be read to require the Senate to say yes to every ordinary removal, just as the Senate must say yes to every ordinary appointment, this reading was repudiated by the Decision of 1789. Whatever power exists to remove executive officers—including officers of independent agencies—is solely executive power. Nearly all of actual American practice from Washington’s era to our own has honored this vision.
⁵⁷

In sum, so-called independent agencies are in reality executive agencies. These entities wield executive power. Their high-ranking officials are all appointed by the chief executive in much the same way that various cabinet heads are appointed—a process that ordinarily involves the Senate as well. The top officials of these agencies are removable by the president acting without any legislative involvement, in much the same way that various cabinet heads are removable.
⁵⁸

One key difference, however, is that cabinet heads are removable
at will
, whereas independent-agency officials are removable only
for cause
, and are in this sense more independent of the president. This modest form of independence is easy to justify precisely because it does not contravene the written Constitution, which, as we have seen, says nothing explicit about removal (outside of impeachment). Nor does this modest form of independence contravene the Decision of 1789, which only addressed departments akin to the State Department, the War Department, and the Treasury Department—departments with single heads.
⁵⁹

True, we could read the Constitution to imply that all top executive officials must be removable at will. We could further read the document to imply that wherever a statute creates any executive-branch discretion or decisional authority, the president may always substitute his own personal discretion or decision for that of any high-level executive official—even when the statute explicitly vests the discretion or decisional authority in the official and not the president. But this is not a required reading of the text, which qualifies its grant of “executive Power” to the president in a variety of ways. A later clause in the Executive Article says that the president “shall take care that the laws be faithfully executed.” This clause does not say that the president shall
personally
execute all the laws. It says that he shall oversee others and take care that the laws “
be
faithfully executed”—by others, who may indeed be vested by necessary and proper congressional statutes with certain discretion or decisional authority in domains where these independent officials possess distinctive expertise or impartiality.
⁶⁰

Or so the terse text may plausibly be read. And so government has operated for decades and perhaps centuries. And so the boundaries of presidential power have come to be accepted by a long line of presidents of both parties and all political stripes. And so the text and the practice have actually come to cohere and mutually reinforce.
^61
*

Although a president may not dismiss an independent officer at will, he may dismiss any “independent” official who is not faithfully executing the law—anyone who is corrupt, careless, lazy, or lawless, for example.
A president may also dismiss an independent official who is insubordinate to the proper role of the president as the superintendent-in-chief of the entire administration and the wielder of a broad set of powers that the Constitution itself vests in the president personally. For example, if a president orders an “independent” prosecutor not to pursue a certain target of investigation, and the prosecutor defies this order, the president could ordinarily nullify the prosecutor’s actions by pardoning the target. Given this greater power of pardon, it would seem sensible that a president also has a lesser power of mere non-prosecution. And if, in fact, the president does rightly enjoy a power of non-prosecution—a power vested in him and him alone by the Executive Article itself in a specific clause beyond its opening “executive Power” grant—then any “independent” prosecutor who thumbed his nose at a presidential order to cease prosecution would have overstepped his subordinate authority and committed a removal-worthy act of insubordination. (If the official cannot in good conscience carry out the president’s orders, the path of honor is generally not defiance but resignation.)
⁶²

The casual labels distinguishing cabinet officers from “independent” agency officials should thus not obscure the fact that both sets of officials fall wholly within the executive branch, albeit with varying rules of composition, authority, and removal.

Viewed through the prism of practice, the Constitution allows independent agencies to be created when three factors converge: first, when an executive entity is best headed up by a committee rather than by a single officer; second, when it makes sense to create continuity-enhancing fixed-tenure offices embodying technical expertise or nonpartisanship in a specific policy domain; and third, when an executive agency does not routinely interfere with specific constitutional grants of personal presidential authority, such as the powers to command the military, to personally monitor all cabinet heads, to pardon criminals, to parley with foreign leaders, to make appointments, to define an overall national agenda, and, more generally, to superintend the entire executive branch.
⁶³

Although the powers vested in independent agencies and the limited removability of these agency officials do constrain presidents, virtually all modern presidents have accepted these constraints. By contrast, many
presidents have loudly objected to improvisations such as the legislative veto or the 1978-style independent counsel. Those improvisations weakened presidents vis-à-vis Congress and courts, whereas limitations on the removal of independent-agency officials have merely reshuffled power among presidents over time. Although President A may not remove at will all the officials he inherits on his first day in office, his successor, President B, will likewise be unable to remove at will all the officials that A manages to appoint during his tenure. Each president thus gets his fair share of presidential power, albeit with a time lag. Put a different way, independent agencies do not involve any legislative vetoes in removals; nor do they give judges nonjudicial power to appoint executive officials. Unlike legislative vetoes or the 1978 independent-counsel statute, laws establishing independent agencies do not vest members of other branches with any executive power whatsoever. Rather, these laws, in keeping with the necessary-and-proper clause, merely allocate authority within the executive branch between the president and his subordinates.

Many presidents over the years may not have even wanted truly plenary power to remove and/or countermand all executive officials. The responsibility to review on a clean slate each policy decision made by every underling might well have weakened modern presidents by overloading them, making it harder for them to concentrate on the issues that mattered most, especially in areas where the Constitution or statutes vested them with personal decisional authority. In this respect, modern presidents confront a qualitatively different supervisory situation from the one faced by George Washington, who stood atop a federal bureaucracy of infinitesimal size, by modern standards. In the end, the simple fact that modern presidents themselves have embraced independent agencies furnishes a strong reason for the rest of us to make room for these agencies as we ponder the laconic language of Article II.

A REMARKABLE AND COMPREHENSIVE PATTERN
has emerged in the preceding pages. On issue after issue and in institution after institution, America’s unwritten Constitution and America’s written Constitution mutually reinforce one another. For example, modern unenumerated-rights jurisprudence does justice to the words of the Ninth and Fourteenth
Amendments, which in turn invite judges to listen carefully to what ordinary Americans in word and deed claim as their rights. In judicial decisions far afield of unenumerated rights, large sectors of Warren Court and post–Warren Court constitutional case law build upon the written Constitution’s basic blueprint. (The exclusionary rule is the major exception.) In their actual organization and operation, all three branches of the federal government gloss the terse text.

America’s written Constitution lives—in America’s unwritten Constitution.

_____________________

^*
The sealing of the commission, not the taking of the oath of office, is the decisive moment of investiture. Taking the oath does not make a person a judge—or a president, for that matter. Oath-taking is merely the first duty of someone who is already legally in office. On this issue, some readers may recall the flubbed oath-taking at President Obama’s 2009 inauguration and the president’s decision to retake the oath a few hours later out of an abundance of caution. For analysis of this episode, see n. 14.

^*
The constitutionality of this particular boundary line draws support not only from 150 years of continuous practice, but also from the fact that the jumpstarting authority of the old House’s clerk was a prominent and pivotal part of the process by which the Fourteenth Amendment actually came to be enacted—a process that, as noted in Chapter 2, famously began with the exclusion of the ex-gray states from Congress in December 1865. In the vocabulary of this book, McPherson’s jumpstarting actions in 1865 are thus part of America’s
enacted
Constitution, whereas the jumpstarting actions of all subsequent House clerks are part of America’s
institutional
Constitution.

^*
Here are two formal proofs of the unconstitutionality of the legislative veto. Proof number 1: The federal government has only three kinds of power—legislative, executive, and judicial (per the Constitution’s first three articles and Tenth Amendment). Hence the legislative veto must fit into one of these three boxes. If it is an exercise of legislative power, it requires bicameralism and presentment. If, conversely, it is an exercise of executive or judicial power, it may not be carried out by the Congress, which is not given such powers (outside a few carefully specified contexts). Either way, the legislative veto fails. QED. Proof number 2: In voting to block the executive’s determination that conditions A, B, and C are met and that a given person thus deserves the statutorily prescribed benefit, Congress is doing one of two things—either applying the ABC standard specified in the earlier statute, or laying down a new standard. In the former case, this effort to apply a prior law to a later and specific fact situation is an impermissible effort to wield executive or judicial power. In the latter case, this effort to adopt a new legislative standard requires bicameralism and presentment. Either way, the legislative veto fails. QED.

^*
Recall that Andrew Johnson was never elected president in his own right and became president only by dint of an assassin’s bullet.

^*
Full disclosure: Ken Starr has been my friend for many years, and we regularly taught classes together at Pepperdine Law School from 2005 to 2010. However, I have never discussed with him anything closely connected to his service as independent counsel.

^*
Even if the line between cabinet departments and independent agencies was not clearly established in constitutional text prior to 1967, the Twenty-fifth Amendment, which was adopted in that year, constitutionalized this line and thus implicitly endorsed the propriety of independent agencies. For details, see n. 61.