FDR, Nixon, Ford, and Reagan
In the 1930s, Franklin Roosevelt continued the expansion of federal administrative power that the Progressives had begun, but he also tried aggressively to bring that administrative apparatus under the control of a unitary executive. For example, when he saw that a member of the Federal Trade Commission--William Humphrey--was impeding his New Deal policies, he repeatedly asked him to resign. When Humphrey refused, Roosevelt fired him, even though he was serving a fixed term set by Congress with the legislative stipulation that he could be dismissed only for "inefficiency, neglect of duty, or malfeasance in office." Roosevelt fired him for purely political reasons.
Roosevelt also proposed to the Congress a plan for reorganizing the executive branch to concentrate control in the office of the president. The plan included abolishing the Civil Service Commission and moving the independent regulatory commissions into the regular executive departments.
Both the Supreme Court and the Congress rebuffed Roosevelt's efforts to strengthen the unitary executive. In Humphrey's Executor v. U.S. (1935), the Court ruled that Roosevelt's firing of Humphrey was illegal because officials of quasi-legislative or quasi-judicial agencies established by Congress could only be removed for the nonpartisan reasons set by Congress. (Recently, Trump's Acting Solicitor General Sarah Harris has notified Congress that the Department of Justice will ask the Supreme Court to overturn Humphrey's Executor as an unconstitutional constraint on the President's executive power to fire anyone in the executive branch.)
The Congress rejected Roosevelt's plan for reorganizing the executive branch. The Congress did pass a compromise plan that gave the President only limited authority to reorganize the executive branch on his own.
Another attempt to expand presidential power over the executive branch was initiated by Richard Nixon. He entered the White House in 1969 as a conservative Republican facing a Congress controlled by the liberal Democrats and surrounded by administrative institutions that had been recently expanded by Lyndon Johnson's Great Society programs. The Democrats controlled both Houses of Congress throughout Nixon's two terms. He resented the administrative state as an impediment to his presidential leadership. He insisted: "I don't believe that civil service is a good thing for the country." He tried to push his political loyalists deep into the federal bureaucracy. He impounded funds appropriated by Congress when this congressional spending was contrary to his own policies. When he won reelection by a landslide in 1972, he argued that this showed a popular mandate for the expansion of his presidential power over the bureaucracy. In trying to establish what Richard Nathan (1975) called an "Administrative Presidency," Nixon was foreshadowing what Trump is trying to do right now.
But all of this was brought to an end by the Watergate scandal and by the exposure of Nixon's attempts to cover-up the White House's involvement in the Watergate burglary, the exposure coming from a secret informant in the executive branch (called "Deep Throat") who passed information to reporters for the Washington Post. Nixon was forced to resign in 1974 to avoid being impeached by Congress. Many of the people involved in the Watergate burglary and cover-up were sent to prison.
Congressional revulsion with the Watergate scandal and everything surrounding it spurred Congress into enacting a long series of laws over the next fifteen years designed to constrain administrative presidentialism and increase congressional oversight of the executive branch. This included laws establishing an Inspector General in many executive departments and agencies. The Inspector General was granted investigatory powers to look for waste, fraud, and abuse of power, with responsibilities to report to Congress regularly. (On January 24 of this year, Trump fired 17 IGs by email in violation of the legal requirement that the president give Congress a 30 day advance notice.)
The Congress also passed laws giving protection to whistleblowers, so that civil servants can alert Congress to wrongdoing without fear of being punished by their supervisors.
The Ethics in Government Act of 1978 allowed for the creation of independent prosecutors to investigate and prosecute abuses of executive power.
Coming in the wake of the Watergate scandal, these new congressional restraints on executive power provoked the elaboration of a unitary theory of the executive, beginning in the administration of Gerald Ford and continuing in Ronald Reagan's administration. Ford felt particularly vulnerable because he came into office after Nixon's resignation without ever having run for the presidency, so he could not claim the authority of having won a popular election. His only line of defense was to appeal to the power of the presidency as established in Article II of the Constitution to be separated from the legislative and judicial powers. Ford's advisors--such as Dick Cheney, Donald Rumsfeld, and Antonin Scalia--urged him to interpret Article II as a broad grant of power to the presidency that could resist congressional interference in the Executive Branch (Shane 2006).
Scalia had been nominated by Nixon to be Assistant Attorney General for the Office of Legal Counsel. He was nominated again by Ford and confirmed shortly after Ford took office. One of his first acts was to advise Ford to veto some amendments to the Freedom of Information Act because they would infringe the power of the President to protect the secrecy of classified information in the intelligence agencies and the FBI. Congress overrode the veto by a vote of 371 to 31 in the House and 65 to 27 in the Senate. This was one of many examples of the Congress's aggressive attacks on the prerogatives of the President. Scalia repeatedly testified before Congress defending Ford's invocation of executive privilege in withholding documents from Congress.
This battle between Congress and the President was renewed during Reagan's two terms. When congressional Democrats used their power to impede Reagan's agenda, Republican legal thinkers began looking for ways to interpret the Constitution as giving Reagan the power as president to achieve his goals without congressional approval. They developed the unitary executive theory to support the claim that Article II of the Constitution gave the President the exclusive power over the Executive Branch that could not be constrained by Congress.
This became one of the ideas advanced by the conservative legal movement that emerged during Reagan's presidency as led by the Federalist Society, which was founded in 1982. Scalia was one of the founding leaders of the Federalist Society. His career as a federal judge began when Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit in 1982. Then, in 1986, Reagan appointed Scalia to the Supreme Court. Two years later, he wrote his dissenting opinion in Morrison v. Olson, which became the classic statement of the unitary executive theory.
Morrison v. Olson
The case of Morrison v. Olson (1988) presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. When this law was passed, the Democrats controlled both Houses of Congress and the Presidency (Carter). The purpose of the law was to allow for the appointment of special prosecutors who would be independent of the President in investigating and prosecuting high-ranking government officials for violations of federal criminal laws, which could include the President himself.
This law was passed to prevent something like President Nixon's "Saturday Night Massacre" of October 20, 1973. Over this one day, Nixon ordered Attorney General Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, but Richardson refused and resigned immediately. Nixon then ordered Assistant Attorney General William Ruckelshaus to fire Cox. But Ruckelshaus also refused and resigned. Finally, Nixon issued his order to the third ranking person in the Department of Justice--Solicitor General Robert Bork--who carried out the order and did not resign. The public outcry against this made it the turning point in the Watergate scandal. The impeachment process began ten days later. Leon Jaworski was appointed as the new Special Prosecutor on November 1. Nine months later, Nixon was forced to resign on August 8, 1974.
As required by the Ethics in Government Act, whenever the Attorney General receives information about the possibility that a high government official has violated a Federal criminal law, he must investigate this and report his findings to a special court called the Special Division, which consists of three circuit court judges or justices appointed by the Chief Justice of the United States. If the Attorney General determines that there are "no reasonable grounds" to believe that further investigation is warranted, then the Special Division has no power to appoint an independent counsel. But if the Attorney General decides that there are "reasonable grounds" for an investigation, then he must apply to the Special Division for an appointment of an independent counsel; and the Special Division must then appoint an appropriate person as the independent counsel.
An independent counsel can be removed from office either by impeachment and conviction by Congress or by the Attorney General but "only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties."
The Ethics in Government Act also provides for congressional oversight of the independent counsel. The Act gives certain congressional committee members the power to request that the Attorney General apply for the appointment of an independent counsel, but the Attorney General can turn down this request if he determines that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." Once an independent counsel is appointed, the "appropriate committees of Congress" are given oversight jurisdiction over the official conduct of the independent counsel, who is required to cooperate with Congress in the exercise of his jurisdiction.
The case of Morrison v. Olson illustrates how this Act works in practice. In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency to produce certain documents related to the enforcement of the "Superfund Law." Acting on the advice of the Department of Justice, President Reagan ordered the Administrator of the EPA to invoke executive privilege to withhold certain documents. Eventually, the administration agreed to give the House Subcommittees limited access to the documents.
In 1983, the House Judiciary Committee began an investigation into the role of the Department of Justice in this controversy over the EPA documents. In 1985, the majority members (Democrats) of the Judiciary Committee published a report on the investigation, which included the charge that Theodore Olson, the Assistant Attorney General for the Office of Legal Counsel, had given false and misleading testimony under oath to Congress, which is a federal crime. This report was sent to the Attorney General (Edwin Meese) with a request that he seek the appointment of an independent counsel to investigate charges against Olson and two others in the Department of Justice. The Attorney General decided to ask for that appointment. In 1986, the Special Division appointed Alexia Morrison as the independent counsel.
In 1987, Morrison caused a grand jury to issue and serve subpoenas on Olson and the other two being charged. Olson and the other two moved in Federal District Court to quash the subpoenas, claiming that the Act's independent counsel provisions were unconstitutional and therefore that Morrison had no authority to proceed. The Federal District Court upheld the Act's constitutionality. But the Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, sec. 2, cl. 2; the limitations of Art. III; and the principle of separation of powers by interfering with the President's authority under Art. II.
In an 7-1 decision, the Supreme Court upheld the constitutionality of the Act, with Chief Justice William Rehnquist writing the opinion of the Court. Justice Kennedy did not take part in the case.
The majority gave three reasons for their decision. First, the Act does not violate the Appointments Clause in vesting the appointment of independent counsel in the Special Division, because Olson and the other two being charged are "inferior" officers for the purposes of the Clause, which states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Second, the powers vested in the Special Division do not violate Article III, because the power to appoint independent counsel derives from the Appointments Clause, which is a source of authority for judicial action that is independent of Article III.
Third, the Act does not violate separation of powers by improperly interfering with the functions of the Executive Branch, because while the legislative, executive, and judicial powers are separated, they cannot be totally separate and distinct from one another--checks and balances require "a partial mixture of powers" (as Madison explained in Federalist Number 47).
Scalia's Dissent
Remarkably, Scalia was the only dissenter in this case. His dissent was also remarkable because he was disagreeing with Rehnquist despite the fact that Rehnquist and Scalia agreed in their conservative ideology and their conservative jurisprudence of originalism.
Scalia's dissent proved remarkable in another way--in that it became the most influential statement of the theory of the unitary presidency, so influential that in recent years, the conservative justices on the Roberts Court have adopted his arguments, to the point that some observers of the Court are predicting that the Court will appeal to Scalia's theory of the unitary presidency in upholding Trump's dictatorial view of his presidential powers.
But I see Scalia's dissenting opinion in Morrison as clear evidence that Scalia was a spurious originalist: despite his insistence that he always followed the original meaning of the law--both in the Constitution and in statutory law--his dissenting opinion ignores the original meaning of the constitutional text, and he rewrites the text by adding his own words, so that it appears to support his ideological commitment to the unitary presidency.
This is evident in his primary argument about the meaning of Article II, sec. 1, cl. 1, of the Constitution: "The executive Power shall be vested in a President of the United States." Scalia insists: "this does not mean some of the executive power, but all of the executive power," and therefore the President must have complete control over the entire Executive Branch, and neither the Congress nor the courts can ever exercise any kind of executive power.
The powers of an independent prosecutor are clearly executive powers, and therefore the President must have total control over the appointment and removal of an independent prosecutor. Consequently, the Ethics in Government Act is unconstitutional in insulating an independent prosecutor from the power of the President. (By implication, then, Scalia was arguing that Nixon's ordering the firing of Cox as Special Prosecutor was a constitutional exercise of his presidential power over the Executive Branch.)
All of this depends on Scalia's claim that the vesting of the executive power in the President means "all of the executive power." He repeats this five times in his opinion, and in three of those, he italicizes the word all (705, 709, 715, 729, 734). But notice that the word all does not appear in the executive vesting clause: "The executive Power shall be vested in a President of the United States."
As some constitutional commentators have noted, the Constitution uses the word "all" eleven times to denote exclusivity or indefeasibility (Shugerman 2022). For example: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" (Art. I, sec. 1). It also uses the words "exclusive" (2 times), "sole" (2 times), and "alone" (1 time) to denote exclusivity or indefeasibility. For example: "The House of Representatives . . . shall have the sole Power of Impeachment" (Art. I, sec. 2, cl. 5).
Clearly then, if the constitutional framers had wanted to vest the executive power exclusively or indefeasibly in the President, they would have used one of these words. But they did not. Scalia is silent about this.
He is also silent about the Constitution's grant of the supreme powers over the national government to the Congress. The Congress is given various enumerated powers that include some executive powers that had belonged to the British monarch such as the power to declare war (Art. I, sec. 8). But the Congress is also given the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (Art. I, sec. 8, cl. 18). Notice what this means: Congress has the power to make all the laws for the execution of all the powers vested in the government of the United States. So the execution of all the powers of every department or officer in the Executive Branch will depend upon congressional legislation. For example, the existence of the Department of Justice and its officers will be determined by congressional legislation.
That this congressional power over the Executive Branch includes the legislative procedures for appointing executive officers is made clear by the Appointments Clause:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Art. II, sec. 2, cl. 2.
In the preceding clause, the Constitution stipulates that the President "may 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." So the Constitution distinguishes between "principal officers," who are nominated by the President and confirmed by the Senate, and "inferior officers," whose appointment is vested by Congress in the President alone, in the courts, or in the Heads of Departments. Distinguishing between the "principal officers" and the "inferior officers" is mostly left up to the Congress. Therefore, in the Ethics in Government Act, the Congress exercised its constitutional power to vest the appointment of an independent prosecutor as an inferior officer in the Special Division as a court of law.
This supports Rehnquist in his only comment on Scalia's dissenting opinion. "The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will." But this "depends upon an extrapolation from general constitutional language which we think is more than the text will bear." So, Scalia is not really a textualist after all. Because the text of the Constitution--particularly, the Appointments Clause--clearly gives to Congress the power to limit and regulate the removal of inferior officers by such laws "as they think proper" (689-90).
But despite this clear language of the constitutional text that supports the constitutionality of the Ethics in Government Act, Scalia insisted that the Act was unconstitutional because it violated the constitutional principle of separation of powers. Now, the words "separation of powers" never appear in the text of the Constitution. Nevertheless, the mere fact that the Constitution begins with the Legislative Article I, the Executive Article II, and the Judicial Article III suggests the separation of these three powers. And yet Scalia is clearly wrong in assuming that this requires a complete and absolute separation because the Constitution stipulates some mixing of the three powers. For example, the President's power to veto legislation passed by Congress is a legislative power. And the Congress controls the Executive Branch by legislatively creating and regulating most of the executive offices and departments.
To prove that the constitutional separation of powers really does require a complete and absolute separation of the three powers, Scalia begins his opinion by quoting a passage from the Massachusetts Constitution of 1780:
In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
Scala then cites James Madison's Federalist Number 47 as endorsing this "political truth" of the separation of powers as necessary for securing liberty. Scalia does not tell his reader, however, that just after quoting this passage from the Massachusetts Constitution about separation of powers, Madison remarks: "In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted" (Hamilton, Madison, and Jay 1961: 327-28). Madison saw this as confirming what Montesquieu and other proponents of the separation of powers have always understood--that checks and balances require some "partial mixture of powers" so that each power can check the other two powers.
That's why the Constitution's vesting of the executive power in the President is not an exclusive or indefeasible vesting of all executive power in the President alone.
But even if the executive vesting clause of the Constitution (the first sentence of Article II) does not support the theory of the unitary executive. The proponents of the unitary executive can fall back to two more arguments based on the Faithful Execution Clauses of Article II and the "Decision of 1789."
The Constitution twice imposes a duty of faithful execution on the President. He "shall take Care that the Laws be faithfully executed" (Art. II, sec. 3). The president must also take a special oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States" (Art. II, sec. 1, cl. 8). According to the advocates of the unitary presidency, one or both of these clauses give the president the power to act outside the law to defend the nation in times of emergency, and to refuse to execute statutory laws that he regards as unconstitutional or bad policy.
But scholars who have studied the textual roots of these clauses from medieval England, through colonial America, and up to the constitutional ratification debates have found that this language of "faithful execution" imposed three duties on officeholders: "(1) a duty not to act ultra vires, beyond the scope of one's office; (2) a duty not to misuse an office's funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office" (Kent, Leib, and Shugerman 2019: 2112). If this is the original meaning of "faithful execution," then the proponents of the unitary executive are wrong to claim that this language gives the President the power to violate the laws of Congress and the Constitution.
And yet there is still another argument for the unitary executive that appeals to what has been called the "Decision of 1789." In Seila Law LLC v. Consumer Financial Protection Bureau (2020), the majority of the Roberts Supreme Court declared that the tenure protection for the Director of the CFPB--the President could remove him only for "inefficiency, neglect of duty, or malfeasance in office"--was an unconstitutional violation of the separation of powers. In their reasoning for this conclusion, they largely adopted Scalia's arguments in his Morrison dissent. They claimed that the President's unrestricted removal power was confirmed by history--particularly in the decision of the First Congress in 1789 recognizing that "the executive power included a power to oversee executive officers through removal" (Seila L., 140 S. Ct. at 2183, at 2197 [2020]). The only evidence they gave for this was a Letter from James Madison to Thomas Jefferson (June 30, 1789).
But scholars who have studied the records of the debates in the First Congress (1789-1790) have found that the majority in the House and Senate never agreed that the Constitution gave the President an unrestricted removal power. After a long debate, the First Congress did ultimately allow the President a unilateral removal power over the Secretaries of Foreign Affairs, War, and Treasury. But while a small minority seemed to believe that this grant of removal power came from Article II of the Constitution, many in the Congress believed this to be a congressional grant of removal power (Chabot 2022; Shugerman 2023). The reason for this disagreement is that the Constitution is silent on this question: assigning the President a plenary removal power appears nowhere in the Constitution.
There were at least four factional groups in the debate in the First Congress over the removal power. The "impeachment only" faction believed that the only constitutional power for removing executive officers was congressional impeachment. The "senatorial" faction believed that since the Constitution required the President's appointments to be approved by the Senate, this implied that the President's decision to remove a superior officer would have to be approved by the Senate. The "congressional" faction believed that any removal power of the President would have to be delegated to him by the Congress, and thus it was a matter of discretion for the Congress to say upon what terms an office could be held. And, finally, the "presidential" faction believed that the President's removal power was implicitly given to him by Article II of the Constitution.
There is some evidence that these disagreements over the interpretation of the Constitution arose from different individuals having different political agendas. So, for example, those individuals whose political careers might be tied to President Washington's administration might argue for expansive presidential powers.
This indicates that to understand the evolutionary science of government through countervailing or balanced powers, we need to understand not only the natural history and cultural history of governmental countervailance but also the biographical history of the individuals who debate the meaning of separation of powers with checks and balances.
That will be the subject for my next post on how the individual history of Scalia and Trump shaped their commitment to the unitary executive theory.
To be continued . . .
