On presidents v. special counsels, Justice Scalia got it right long ago

On presidents v. special counsels, Justice Scalia got it right long ago
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Late last week, the Senate Judiciary Committee advanced a bill that would create protections for special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE. The bill would require that the special counsel be fired only “for cause” as opposed to “at will,” and provide for expedited judicial review of any firing. Notwithstanding the objections of some Republicans, the bill passed committee with a favorable 14-7 vote.

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Some of those objections are constitutional, rooted in Justice Scalia’s historic dissent in Morrison v. Olson. The Supreme Court, in a 7-1 decision, upheld the constitutionality of the “independent counsel” appointed to investigate and prosecute crimes committed by high-level executive branch officials. Justice Scalia’s lone dissent observed that Article II, Section 2 of the Constitution vested “executive power” in the president of the United States, that prosecution was a quintessential executive function, and that this function was therefore vested in the president and not any official independent of the president.

Sen. Dick DurbinRichard (Dick) Joseph DurbinKavanaugh’s fate rests with Sen. Collins Amnesty International calls to halt Kavanaugh nomination Fox's Chris Wallace: All 10 Democratic Senate Judiciary members again declined interview invitations MORE (D-Ill.) thus quipped at last week’s hearing that “some senators would prefer stare Scalia to stare decisis.” As they should — because Justice Scalia was right.

There are two relevant constitutional provisions, both elucidated by a debate in the First Congress in 1789. Congress was about to establish one of the nation’s first executive departments, the Department of Foreign Affairs, and the question was what power did the president have over the removal of the head of that department. There were three plausible positions: the power to remove was coincident with the power to appoint, and thereby required advice and consent of the Senate; Congress had the power to confer a unitary removal power at its discretion; or the president had such a power by virtue of the Constitution itself.

James Madison and the Federalists made principally two constitutional arguments in favor of the president’s constitutional power. First, the executive power is “vested” in the president of the United States, except where it was specifically qualified — for example, by the requirement for advice and consent for treaties and appointments. Because the power to superintend, control, and remove officers was an executive power not otherwise qualified by the Constitution, it belonged to the president alone.

But the more convincing constitutional provision was the president’s duty to “take care that the laws be faithfully executed.” As Madison argued, “If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.” Indeed, how can the president ensure that the laws be faithfully executed if he has no ability to remove officers he believes is acting inconsistently with what a faithful execution of the law requires?

These arguments persuaded the other representatives, who voted to delete language in the bill that appeared to confer the removal power at Congress’s discretion, in favor of the following provision: “whenever the said principal officer() shall be removed by the President.” The implication, the author of the amendment explained, was a legislative “declaration of our sentiments upon the meaning of a Constitutional grant of power to the President.”

This decision has become known as the “Decision of 1789,” and stands for the proposition that the president has a unitary authority by virtue of the Constitution to remove executive officers.

There have been some attempts to challenge this history by claiming that the representatives voting in favor of the amendment were divided between those who believed a unitary removal power was constitutionally required, and those who believed it was a matter of Congress’s policy discretion. Although this criticism warrants thorough treatment, it is enough at present to state that the entire tenor of the debate was constitutional, and not about policy.

Others challenges have claimed that prosecution was not always conducted by the “executive,” implying either that prosecution was not an executive function, the president’s power was not unitary over executive functions, or both. But these challenges, too, fall short. I have explained in previous writing that Justice Scalia was right — when conducted by government, prosecution has “been conducted never by the legislature, never by the courts, and always by the executive.”

But why does this matter anyway, if the Supreme Court has already upheld the validity of this kind of legislation? The answer is we are governed by the Constitution, not by the opinions of the Supreme Court, and members of Congress (and the Executive) take their own oaths to uphold the Constitution and have independent obligations to interpret their constitutional authority. This interpretive “departmentalism” was widely observed throughout American history, although Congress has in recent decades abandoned its independent obligation to ensure its acts conform to the Constitution.   

Thomas Jefferson, for example, pardoned individuals convicted under the Sedition Act because he believed that act to be unconstitutional notwithstanding contrary pronouncements by the courts, and Abraham Lincoln urged Congress to reenact the Missouri Compromise although it had been struck down as unconstitutional by the Court in Dred Scott. And Andrew Jackson vetoed the Second Bank of the United States, even though it had been approved by the Court.

“If the opinion of the Supreme Court covered the whole ground of this act,” Jackson wrote, “it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”

"Stare Scalia," indeed — because he was right.

Ilan Wurman is the author of A Debt Against the Living: An Introduction to Originalism. Starting in June he will be teaching administrative law and constitutional law at the Sandra Day O’Connor College of Law at Arizona State University. Previously, Wurman was a nonresident fellow at the Stanford Constitutional Law Center. You can follow him on Twitter @ilanwurman.