America's Unwritten Constitution: The Precedents and Principles We Live By (99 page)

         
In Chapter 10, we shall consider the role that political parties have played in shaping America’s
partisan
Constitution. In this context, it is worth noting that at different points in the past, each party has attacked the entrenched filibuster, and that sometimes both parties have done so simultaneously. In 1960, when Democrats and Republicans combined to nominate four Senate figures (three sitting senators and the sitting vice president, himself an ex-senator) to top their tickets,
both
parties featured strong filibuster-reform planks in their official platforms.

45
  
Blackstone’s Comm
., 1:90, 174. For analysis of British practice and theory strongly supportive of the approach advocated in this book, see Josh Chafetz’s remarks in his debate with Michael Gerhardt, “Is the Filibuster Constitutional?,”
U. of Pennsylvania LR PEN-Numbra
158 (2011): 245, 250. On the equality of legislatures across time, see also
Federalist
No. 78 (Hamilton) (“[T]he last [statute] in order of time shall be preferred to the first…from the nature and reason of the thing.…[B]etween the interfering acts of an
equal
authority, that which was the last indication of its [the legislature’s] will, should have
the preference.”);
Newton v. Comm’rs
, 100 U.S. 548, 559 (1879) (similar). On majority rule within each house, see
United States v. Ballin
, 144 U.S. 1, 6 (1892) quoted supra text accompanying nn. 38–39.

46
  Clear evidence that the Founding generation accepted this logic comes from the text of Virginia’s 1786 Bill of Religious Freedom, a landmark statute enacted largely thanks to the efforts of Jefferson and Madison : “[W]e well know that this Assembly, elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law.”

47
  The first federal legislative veto provision was in the Act of June 30, 1932, ch. 314, sec. 407, 47 Stat. 382, 414. See
Immigration and Naturalization Service v. Chadha
, 462 U.S. 919, 944 (1983); ibid., 969 (White, J., dissenting).

48
  In this later case, the Court made clear that neither Congress as a whole nor any subset thereof could be vested with a statutory role in the performance of inherently executive acts such as the firing of executive officers—a position evidencing the enduring strength of both
Chadha
and the Decision of 1789. See
Morrison v. Olson
, 487 U.S. 654, 685–686 (1988) (“Congress’ attempt to involve itself in the removal of an executive official [is] sufficient grounds to render [a] statute invalid”).

49
  
Chadha
, 462 U.S. at 942 n. 13. On
post-Chadha
statutes with legislative veto clauses, see, e.g., President George H.W. Bush’s formal statement on November 3, 1989, in the course of signing the Treasury, Postal Service and General Government Appropriations Act of 1990: “[N]umerous provisions of H.R. 2989…constitute legislative veto devices of the kind declared unconstitutional in
INS v. Chadha
. Accordingly, I will treat them as having no legal force or effect in this or any other legislation in which they appear.”

50
  For a list of seventeen statutory independent counsels appointed from 1978 to 1998, see Cass R. Sunstein, “Bad Incentives and Bad Institutions,”
Georgetown LJ
86 (1998): 2267, 2283–2286. To this list we should add Robert Ray, who replaced Ken Starr.

51
  See Act of July 27, 1789, 1 Stat. 28, 29 (secretary of foreign affairs—later renamed secretary of state); Act of Aug. 7, 1789, 1 Stat. 49, 50 (secretary of war); Act of Sept. 2, 1789, 1 Stat. 65 (secretary of treasury). See also Act of Feb. 20, 1792, 1 Stat. 232, 234 (postmaster general).

52
  But cf. 28 U.S.C. 546(d) (providing for interim appointments of U.S. attorneys by federal district courts).

53
  See Henry J. Reske, “A Judge’s Lunch Debated: Five Former ABA Presidents Criticize Meeting with Senators,”
ABA Journal
, Nov. 1994, 32. The other two members of the Special Division that appointed Ken Starr were Judge Joseph Sneed and Judge John Butzner. Anxiety about the propriety of extensive ex parte exchanges between judges and the executive branch lay at the heart of the 1793 decision by the early justices to decline President Washington’s request that they serve as his informal legal advisers. For details, see Chapter 8, n. 22.

54
  Testimony of March 17, 1999, Before the Senate Committee on Governmental Affairs.

55
  Though Saxbe fixes have not generated an extensive academic literature, they have not escaped the eagle eyes of two of America’s preeminent scholars of constitutional method. See Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982), 226; Michael Stokes Paulsen, “Is Lloyd Bentsen Unconstitutional?,”
Stanford LR
46 (1994): 907. The current discussion aims to allay the concerns about Saxbe fixes raised by these scholars.

56
  
Buckley v. Valeo
, 424 U.S. 1 (1976). For an argument that congressional leaders continue to call the shots informally, see Jamin B. Raskin, “‘A Complicated and Indirect Encroachment’: Is the Federal Election Commission Unconstitutionally Composed?,”
Administrative LR
52 (2000): 609, 615–618. For an explanation of how the informality of this revised arrangement can make all the difference constitutionally, see supra text accompanying nn. 48–50.

57
  The most notable exception—the Tenure of Office Act of 1867—is discussed in detail at Chapter 8, n. 18. In brief, this act was repealed by Congress in the late nineteenth century, was emphatically repudiated by the Supreme Court in a landmark case early in the twentieth century, and has no visible advocates on the current Court. No modern president has ever supported this act or its underlying principles.

58
  Whereas statutes establishing cabinet offices have typically allowed the president virtual carte blanche in picking the person of his choice, the laws creating independent agencies have often provided for a partisan balance on the agency, restricting the number of commissioners or board members who may be picked from any single political party. For more on this aspect, see Chapter 10.

59
  See, e.g., Federal Trade Commission Act of 1914, sec. 1, 38 Stat. 717, 718, 15 U.S.C. 41 (giving Federal Trade Commissioners seven-year terms subject to presidential removal for “inefficiency, neglect of duty, or malfeasance in office”); National Labor Relations Act of 1935, sec. 3(a), 49 Stat. 449, 451, 29 U.S.C. 153(a) (1935) (giving NLRB members five-year terms subject to removal for “neglect of duty or malfeasance in office, but for no other cause”); Banking Act of 1935, sec. 203(b), 49 Stat. 684, 704–705, 12 U.S.C. 242 (giving Federal Reserve board members fourteen-year terms “unless sooner removed for cause by the President”); Consumer Product Safety Act of 1972, sec. 4, 86 Stat. 1207, 1210, 15 U.S.C. 2053 (giving Consumer Product Safety Commissioners seven-year terms subject to removal for “neglect of duty or malfeasance in office but for no other cause”). Similar rules apply to many other agencies, including the Federal Energy Regulatory Commission, 42 U.S.C. 7171 (“Members shall hold office for a term of 5 years and may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office”), and the Nuclear Regulatory Commission, 42 U.S.C. 5841 (“Each member shall serve for a term of five years.…Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”). Although some other agency-creating statutes are silent on the removal question, the overall structure of these statutes and the specific mission of these agencies have been thought to limit the president to for-cause removal. The Federal Election Commission is a case in point. See 2 U.S.C. 437c(a);
FEC v. NRA Political Victory Fund
, 6 F.3d 821, 826 (D.C. Cir. 1993).
In the mid-1970s, administrative law scholar Kenneth Culp Davis listed some sixty independent entities with some amount of protection from at-will presidential removal. Kenneth C.
Davis, Administrative Law of the Seventies
(1976), 14. This general picture remains true today, and we should note the especially important role of the independent agencies enumerated by the Paperwork Reduction Act, 44 U.S.C. 3502 (5).

60
  On the “horizontal” sweep of the Article I, section 8, necessary-and-proper clause—its broad empowerment of Congress to make various decisions about how best to structure the executive and judicial departments within the broad outlines laid down by the terse text, as distinct from the clause’s “vertical” confirmation of broad federal power vis-à-vis the states—see Amar,
ACAB
, 110–111. For an argument that various congressional laws have in fact vested executive-branch officials with powers to make decisions as to which the president may not simply substitute his own judgment or discretion, see Kevin M. Stack, “The President’s Statutory Powers to Administer the Laws,”
Columbia LR
106 (2006): 263, 270–273, 276–283 (2006). For a different reading of some of these statutes, see Elena Kagan, “Presidential Administration,”
Harvard LR
114 (2001): 2245.

61
  For a partial list of twentieth-century statutes stretching back to 1914, see supra n. 59. For a late nineteenth-century precursor of these statutes, see the Interstate Commerce Act of 1887, 24 Stat. 379, 383 (creating an Interstate Commerce Commission whose members were to serve six-year terms, and who were removable “by the President for inefficiency, neglect of duty, or malfeasance in office,” but without any suggestion of a plenary presidential power to countermand commission decisions). For Attorney General William Wirt’s much earlier endorsement of congressional power to create statutes giving certain executive department underlings decisional autonomy, see The President and Accounting Officers, 1 Op. Att’y Gen 624, 625 (1823); The President and the Comptroller, 1 Op. Att’y Gen. 636 (1823); The President and Accounting Officers, 1 Op. Att’y Gen. 678 (1824); The President and Accounting Officers, 1 Op. Att’y Gen. 705 (1825); The President and Accounting Officers, 1 Op. Att’y Gen. 706 (1825). For an even earlier statement of this point of view, see Letter from Thomas Jefferson to Benjamin Latrobe (June 2, 1808), in Thomas Jefferson and the National Capital, Saul Padover, ed. (1946), 429, 431 (“[W]ith the settlement of the accounts at the Treasury, I have no right to interfere in the least. The Comptroller is the law officer. He is the sole & supreme judge in all claims for money against the US and would no more receive direction from me as to his rules of evidence than one of the judges of the supreme court.”). For criticism of this point of view, see Steven G. Calabresi and Christopher S. Yoo,
The Unitary Executive
(2008), 89–90.

         
Section 4 of the Twenty-fifth Amendment—which was ratified well after the high-profile emergence of independent agencies—singles out “the principal officers of the executive departments” for special responsibilities. Unless statutes specify otherwise, these officers initially decide whether a president is so disabled as to warrant his displacement by the vice president. Although section 4 does not speak directly to the issue of whether a president may unilaterally oust all high-level executive-branch officials, it does address
a similar—indeed, a symmetric—question: whether high-level executive-branch officials may ever oust the president. And the officials who are specified by section 4 to make this ouster decision are “principal officers of the executive departments”—cabinet heads, and not board members or commissioners of independent agencies. According to the key congressional report, “[o]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists.…The intent…is that the Presidential appointees who direct the 10 executive departments named in 5 U.S.C. 1[now codified as sect. 101], or any executive department established in the future, generally considered to comprise the President’s Cabinet, would participate…in determining inability.” H.R. Rep. No. 203, 89-1, 3 (1965).

         
In essence, this amendment blesses the distinction between cabinet departments and independent agencies—and does so in a way fitting Chapter 8’s functional account. Because presidents are responsible for monitoring cabinet officers—monitoring that includes the power of at-will removal—these cabinet officers are symmetrically best positioned to monitor the president for signs of disability. Independent-agency officials are not in the same position to personally monitor the president, and this is precisely because they are not, as a rule, personally monitored by the president. The commissioners of independent agencies monitor and are monitored by each other, rather than monitoring and being monitored by the president in cabinet-style fashion.

62
  Cf. Washington,
Writings
, 32:386 (March 13, 1793, letter to William Rawle, a U.S. district attorney, “instruct[ing]” Rawle to cease prosecution of a specified case and “enter a Nolle prose qui on the indictment aforesaid”). See Leonard D. White,
The Federalists: A Study in Administrative History
(1961), 31 n. 15, 408 & n. 10.

63
  The specific provisions vesting the president personally with these respective powers are the commander-in-chief clause, the opinions clause, the pardon clause, the ambassador-receiving clause, the appointments clause, the state-of-the-union and recommendation clauses, and the take-care clause. Under this framework, it makes perfect sense that in 1789, the War Department and the State/Foreign Affairs Department were structured as cabinet-style departments directly answerable to the president, and that they have remained so structured ever since. It also makes perfect sense that the attorney general answered directly to the president in 1789 and has done so ever since.