A Note on the Opinion Clause and the Unitary Theory of the Executive

 

 

I do not think it is all that difficult to explain the Opinion Clause as consistent with the President’s having a removal power per the unitary theory of the executive. I am not saying the unitary theory of the executive is correct—only that that position is consistent with the Constitution’s drafters’ having incorporated the Opinion Clause into the Constitution’s text.

The counter-position goes like this. If the President has a constitutionally granted power—i.e., a power not subject to limitation by federal statute—to remove principal Executive Branch officers which he appoints, then he can direct such subordinates to answer questions. If such an officer refuses to respond to the President’s inquiries, then the President can remove the non-responsive officer. In other words, if the President has an unqualified removal power, then the Opinion Clause has no real function because the power to request opinions flows from the power to remove.

But that argument does not work. This is why.

Congress creates and defines offices. In other words, Congress can set qualifications, and Congress could also limit the ability of an officer to communicate with third parties—including the President. If Congress insulated an officer from communicating (even voluntarily) with the President, then the President would be unable to justify a removal based on the officers’ future conduct. Such conduct would not be known until it emerges. In such circumstances, the President would have to wait for the officer to engage in wrongdoing (as the President understands wrongdoing) before removing him.

The Opinion Clause works in tandem with the Take Care Clause. Both clauses empower a President in regard to supervising a subordinate Executive Branch officer prior to the latter’s engaging in wrongdoing (as the President understands wrongdoing). The Opinion Clause functions as a limit on Congress’s power to create (or authorize or regularize) and define offices created by federal statute. To put it another way, the Opinion Clause makes presidential supervision of subordinate Executive Branch officers possible in circumstances where Congress might otherwise block the flow of information between the President and the President’s subordinates. But compare Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2227 n.3 (2020) (Kagan, J., concurring in part and dissenting in part) (arguing that the Opinions Clause is “inexplicable” if the President has a removal power), with Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2324 (2012) (“Congress usually has done nothing to suggest that it wishes to interfere with this authority as to executive branch agencies; and even if Congress has indicated this intent as to the independents, Article II of the Constitution, most notably its Opinions Clause, may bar Congress from such interference.” (foonote omitted)), and id. at 2324 n.311 (“The Opinions Clause may receive reinforcement, for purposes of this argument, from the Take Care Clause, see U.S. Const. art. II, § 3 (obligating the President to ‘take Care that the Laws be faithfully executed’). Although framed in the language of duty rather than power, this clause may imply some minimum amount of presidential oversight authority, on the theory that the President could not perform this function if unable to require information from and engage in consultations with agency officials.”).

Seth Barrett Tillman,  ‘A Note on the Opinion Clause and the Unitary Theory of the Executive,’ New Reform Club (June 8, 2023, 5:32 AM), <https://reformclub.blogspot.com/2023/06/a-note-on-opinion-clause-and-unitary.html>;