Publication

Journal of Legal Analysis

Volume

16

Page

26

Year

2024

Abstract

The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate offcers. That poses a possible textual problem: it seems to make the Opinions Clause superfuous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove offcers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control. This Article recovers another, lost way of thinking about presidential power. According to this conception, Congress can insulate inferior offcers from removal because they must follow orders. As for principal offcers, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal offcers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfuous, then assures the President the power to acquire information to exercise intelligently the power to remove. In addition to this account’s textual and structural virtues, it appears to have been a relatively widely shared understanding of presidential power at the Founding, enough so to be within the range of plausible original meanings. This understanding of executive power may seem overly formalistic, but it is functionally more desirable than the two competing accounts that allow for total control or total balkanization.

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