Ilan Wurman, Arizona State University Sandra Day O'Connor College of Law, has posted The Opinions Clause and Presidential Power:
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 officers. That raises the specter of an imperial presidency, and a textual problem: it makes superfluous the Opinions Clause, which empowers the President to require principal officers to provide written opinions about their respective duties. The other maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove officers 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.--Dan Ernst
This paper recovers another, lost way of thinking about presidential power, one that is more modest than either of the two prevailing understandings and that has the potential to advance the debate. According to this conception, Congress can insulate inferior officers from removal because they must follow orders. As for principal officers, however, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal officers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfluous, then assures the President the power to acquire information to intelligently exercise the power to remove. In addition to this account’s textual and structural virtues, it appears to have been the understanding of presidential power shared by George Washington, Thomas Jefferson, James Madison, William Wirt, Daniel Webster, William Howard Taft, and the First Congress.
This understanding of executive power may seem overly formalistic, but it allows for the existence of agencies whose heads are removable but nevertheless bound by law to exercise independently the discretion Congress has given them, and for the insulation of civil servants and adjudicators subject however to the ultimate control of the heads of department. In other words, it allows for an independent administrative apparatus but over which the President has an important check. It also suggests a modest resolution to SEC v. Jarkesy, the blockbuster case before the Supreme Court this term.
