Things Left Unsaid, Questions Not Asked

RESPONSE THINGS LEFT UNSAID, QUESTIONS NOT ASKED PETER L. STRAUSS† In response to Symposium, The Bounds of Executive Discretion in the Regulatory State, 164 U. Pa. L. Rev. 1587 (2016). INTRODUCTION The University of Pennsylvania Law Review’s symposium on executive discretion is an important undertaking, but it is remarkable for several silences—for things left unsaid on this important subject—and for questions not asked. First, although the Constitution’s “Take Care” Clause is extensively discussed, the one power Article II gives the President over domestic administration—to require the “Opinion, in writing” of the heads of the agencies Congress has invested with administrative duties—is not. Second, the discussion of the President’s undoubted but possibly constrained authority to remove officials of whose actions he disapproves omits discussion of the difference between the strictly political discretion enjoyed by some officers in some functions, and the law-constrained discretion enjoyed by others. Third, discussion of the executive branch’s clear advantages in dealing with complex, technological issues of fact, as compared to Congress and the courts, omits discussion of the possibility that the opaqueness of the executive’s internal functioning may prevent understanding of the extent to which electorally driven politics, not technical expertise, controls its actions. And finally, the empirical exploration of the public’s attitude toward possible differences between presidential oversight and presidential control frames its questions in a manner likely to have predetermined its outcome, and in † Betts Professor of Law, Columbia Law School. Many thanks to the editors of the University of Pennsylvania Law Review for their diligent work on this Response, which has included the provision of all the footnote parentheticals. (293) 294 University of Pennsylvania Law Review Online [Vol. 164: 293 considering the impact on public perceptions does not address the possible impact on administrators’ behavior of their understanding whether the President’s views have only political or (rather) legal bearing on the issues statutes say they are to decide. This Response addresses each topic in turn. I. ARTICLE II’S “TAKE CARE”1 AND “OPINIONS IN WRITING”2 CLAUSES3 The Take Care Clause figures in several Articles in this symposium.4 All are remarkable, however, for their inattention to the one clause in the Constitution affirmatively addressing the President’s power in relation to the heads of the various executive departments that its drafters understood that Congress would create, but left entirely to its statutory judgment. Only Section 2 of Article II defines the President’s affirmative powers. Immediately after making him, unmistakably, “Commander in Chief ” of the country’s military5—able, that is, to give legally binding orders, the violation of which would be punishable by court martial—and before conferring on him the power to pardon offenses,6 Article II, Section 2 addresses his power in matters of domestic government; the only thing it says is that he 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.”7 In the course of rejecting the Solicitor General’s strong unitary executive argument that the vesting clause “constitutes a grant [to the President] of all the executive powers of which the Government is capable,” Justice Jackson’s justly celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer understandably characterized this power as “trifling.”8 The clear textual messages are that Congress will be assigning duties to others who will actually execute the laws and that the President’s relationship to those persons is one of consultation and not, as with the military, 1 U.S. CONST. art. II, § 3. 2 U.S. CONST. art II, § 2, cl. 1. 3 More extensive discussion of the analysis in this Section can be found in my earlier scholarship. See generally Peter L. Strauss, The President and the Constitution, 65 CASE W. RES. L. REV. 1151 (2015); Peter L. Strauss, Foreword, Overseer or “The Decider”? The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007); Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965 (1997); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984). 4 It is also the subject of United States v. Texas, a case that was pending before the U.S. Supreme Court when this Response was written and subsequently affirmed by an equally divided Court. 136 S. Ct. 2271 (2016) (mem.). 5 U.S. CONST. art II, § 2, cl. 1. 6 Id. 7 Id. 8 343 U.S. 579, 640-41, 641 n.9 (1952) (Jackson, J., concurring). 2016] Things Left Unsaid, Questions Not Asked 295 command. From a rule-of-law perspective, these messages suggest an obvious possible understanding of the Take Care Clause that I did not find addressed in the Symposium. “[B]e faithfully executed” reinforces the impression the “Opinion in Writing” Clause conveys: Congress may validly place responsibility for the exercise of the duties it assigns to the executive branch in others than the President, and when it does so, the duties it assigns are, as it explicitly says, “their[s].” The President’s wishes are politically important, but since he is charged only to see to “faithful” execution, his wishes cannot determine the legality of actions by members of the executive branch. To say otherwise would deprive “faithful,” the Clause’s passive voice, and Congress’s lawful placement of duties elsewhere of meaning. The responsibility for determining legality belongs first to the persons on whom Congress has conferred the duties and, second, to the courts. Thus, in virtually any lawsuit challenging an action by an element of the executive branch, the issue is the legality of an action by someone other than the President. In United States v. Texas, the action at issue was taken by Jeh Johnson, the Secretary of Homeland Security.9 Secretary Johnson could not demonstrate that his action was lawful by asserting that he was executing a presidential command, and the government’s argument of the case made no such claim. The President’s communicated wishes are persuasive only if he was seeing to it that Secretary Johnson was “faithfully” executing the law. If he was—that is, if Secretary Johnson’s acts meet the test of legality—the fact that the President requested, even demanded, the action adds little, if anything, to the matter.10 We may expect/applaud/appreciate Secretary Johnson’s political loyalty, but that does not concern the legality of his behavior, which is a prior question and one that he is himself responsible for deciding. The analysis by the Office of Legal Counsel,11 which Professor Bellia addresses at some length,12 may have helped Secretary Johnson in reaching that assessment. What one should note, however, i (...truncated)