Charles van Heck's Woodhull Journal

Part II: The President, the Ghost of Justice Scalia and the Ghostbusters   

Have you ever thought about the word all? This simple word, used either as a noun or an adverb, when used for emphasis, is easily taken for granted. Over these past few weeks, I have found the word to be the focus of my attention thanks to Antonin Scalia, the late associate justice of the Supreme Court. Scalia’s use of the word appears like an apparition in a Stephen King novel. I find myself wondering what was the jurist’s intent. Why? Because his use of all has broad implications for presidential power.

My questions arise from reading Morrison v. Olson, 487 U.S. 654 (1988), a case argued before the Supreme Court on April 26, 1988. The Rehnquist Court considered the independent counsel provisions of the Ethics in Government Act of 1978. The National Constitution Center succinctly summarizes the case.

“This case considered the independent counsel statute, adopted by Congress in the wake of Watergate. The statute created an “independent counsel” appointed by a special court, and who could be removed only for good cause, to investigate alleged ethical violations by high-level executive branch officials. Government lawyer Theodore Olson, who was under investigation by the independent counsel, contended that the statute creating the independent counsel violated separation of powers. The Court, however, held that the law and its protection of the independent counsel from removal did not violate the separation of powers. This opinion set an important precedent that Congress may impose some limitations on the President’s power to remove executive branch officials.” https://constitutioncenter.org/the-constitution/supreme-court-case-library/morrison-v-olson

The Court handed down a 7- 1 decision on June 27, 1988. Chief Justice Rehnquist authored the majority opinion. Justices Brennan, White, Marshall, Blackmun, Stevens, O’Connor concurred. Justice Kennedy recused himself. Justice Scalia dissented.

What does this have to do with the Unitary Executive Theory? In brief, the theory grants a president sole authority of the executive branch, consolidating power over the federal government in the White House and thus weakening the authority of Congress and the judiciary branches. The Unitary Executive Theory shapes President Donald Trump’s attitude towards power.

All’s ghost, a hazy outline, is beginning to appear.

Article II, Section 1, Clause 1 of The United States Constitution reads, “The executive Power shall be vested in a President of the United States.”

In his dissent, Justice Scalia added to the Constitution. He writes: “To repeat, Article II, § 1, cl. 1, of the Constitution provides: “The executive Power shall be vested in a President of the United States. As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power.”  https://supreme.justia.com/cases/federal/us/487/654/

There. The apparition appears, italicized by Scalia, and it has a shape and a name: Unitary Executive Theory (UET). Textualism, the method Justice Scalia applied in writing his decisions, adds and subtracts to constitutional text. Adherents to UET state that it is only applicable to presidential control of independent agencies. However, in Morrison v. Olson, Scalia grants broader power to the president. Moreover, his use of the theory has far-reaching influence and implications.         

President Trump and his advisors understand the Constitutional Unitary Executive Theory as “investing” in the “executive Power” to possess sole authority over the Executive Branch. The theory and its adherents hold that in his executive capacity, the president (any president) can remove any subordinate officials of the Executive branch,  including Congressionally appointed agency officers, and shut down independent agencies established by Congress, as well as terminate administrative law judges without consulting with or having Congressional approval. In Trump’s and his advisor’s reasoning, the president does not require a justifiable cause, such as misconduct. His actions can be taken at will. In this interpretation of  Article II, Section 1, Clause 1, a president has all the power.

There is a “ghostbuster” that we can call. That is Article II, Section 2, Clause 2. This reads:

“He 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, 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”

Article II, Section 2, Clause 2, known as the Appointment Clause, makes abundantly clear that the Senate has the authority to structure the executive branch in its Advice and Consent role. Any person in the office of the presidency acts as an administrator. Article II, Section 3 qualifies the administrative (presidential) role: “… he shall take Care that the Laws be faithfully executed…”

In his capacity as president, the Executive serves as an administrator. President Harry Truman’s archives contain a summary of the role of presidential authority.

A PRESIDENT CAN

make treaties with the approval of the Senate, veto bills and sign bills, represent our nation in talks with foreign countries, enforce the laws that Congress passes, act as Commander-in-Chief during a war, call out troops to protect our nation against an attack, make suggestions about things that should be new laws, lead his political party, entertain foreign guests, recognize foreign countries, grant pardons, nominate Cabinet members and Supreme Court Justices and other high officials, appoint ambassadors, talk directly to the people about problems, represent the best interest of all the people,

A PRESIDENT CANNOT

make laws, declare war, decide how federal money will be spent, interpret laws, choose cabinet members or Supreme Court Justices without Senate approval.

https://www.trumanlibrary.gov/education/three-branches/what-president-can-do-cannot-do

Neither a Supreme Court Justice’s dissenting opinion nor the Unitary Executive Theory are the law. The Supreme Court has issued other opinions on the limitations of Executive power. These include Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006). It is the responsibility of jurists, in the Circuit, the Appellate, and the Supreme Courts to rein in the Trump Administration’s grab for all power. It is the responsibility of the House of Representatives and the Senate to assert their constitutional authority. Most importantly, it is essential that we, the people, remind ourselves, as well as our elected officials, that we are the government. If no action is taken, then the all of the Unitary Executive Theory will become an authoritarian ghost that will haunt future generations.

The question becomes, “Who you gonna call?”