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This foundational constitutional principle could use a comeback.
The war between President Donald Trump and Special Counsel Robert Mueller rages on. Mueller continues to methodologically pick off Trump’s former allies: Michael Flynn, Paul Manafort, and Michael Cohen, among others. Yet no evidence has surfaced that indicates collusion with the Russians, much less a criminal conspiracy between Trump and Russia. In response, the president floats the idea of firing Mueller or pardoning himself while also maintaining his own innocence. Members of Congress, meanwhile, seek to resuscitate the independent-counsel law, which would protect Mueller from removal unless he commits a crime or violates DOJ regulations.
This political combat may have entertainment value, and it surely keeps profits up at the cable-news networks. But at the same time, it provides a critical lesson for the nation on the importance of the separation of powers. If the Mueller investigation ever gets to the Supreme Court, it will even give the new Roberts Court the opportunity to attack a serious cancer on our constitutional order. Special counsels not only disfigure the unity of the executive branch, but they represent a misguided approach to the separation of powers that has allowed the government to depart from the Framers’ vision, resulting in a loss of accountability and energy in the execution of the laws and a loss of liberty.
Those who support an independent special counsel out of fear of an unchecked president misunderstand the Framers’ design. The Constitution checks the president not from within the executive branch, but from without. The Founders understood they were creating a powerful executive. Although they had rebelled against King George III’s abuse of Crown powers, they soon understood that the weak national and state executives of the revolutionary and confederacy periods led to oppression, anarchy, and ineffectiveness. As Hamilton explained in The Federalist, “good government” requires “energy in the executive.” A vigorous president is essential to “the protection of the community from foreign attacks” and “the steady administration of the laws.”
The Constitution represented an effort to restore the executive’s traditional powers. The opening line of Article II of the Constitution declares that “The executive Power shall be vested in a President of the United States of America.” As Justice Antonin Scalia wrote in his finest opinion, his dissent in Morrison v. Olson, “This does not mean some of the executive power, but all of the executive power.” Chief among the traditional executive powers is the duty, vested in the president by the Constitution, of seeing that “the laws are faithfully executed,” protecting the nation’s security, and conducting foreign policy.
The Constitution recognizes not only the return of traditional executive powers to the president, but also his personal control of the executive branch. The Constitution concentrates all of the executive power in one person: the president. All other officials are subordinates who exist only to assist the president in carrying out his constitutional responsibilities. James Madison observed that the grant of executive power to the president gave him “the power of appointing, overseeing and controlling those who execute the laws.” Or, as the Supreme Court declared in Myers v. United States (1926), “it was natural, therefore, for those who framed our Constitution to regard the words ‘executive power’ as including” the power to remove executive officers. A president, therefore, has the right to direct all executive-agency officials on the performance of their duties and, if they refuse, to remove them from office.
This approach to the separation of powers makes clear the outcome of any fight over the special-counsel investigation. The Constitution makes the president head of the executive branch. No special counsel can operate independent of the president’s oversight, just as no cabinet member or prosecutor can. A regulation issued by a department (which provided the basis for Mueller’s appointment as special counsel) cannot limit the president’s constitutional power to remove officers. Otherwise, a mere cabinet officer could prevent future presidents from exercising the authorities of their office. When subordinate executive officials act at odds with presidential policy, they prevent him from carrying out his duty to execute the law in the manner he sees fit. No matter what a statute or regulation may say, the president may fire them immediately. Whether such a move is politically wise, the Constitution does not answer.
Just as the separation of powers requires that the president control the executive branch, it also recognizes that each branch operates independently of the others in the performance of its unique constitutional role. Neither the president nor Congress can dictate to the Judiciary how to decide cases or controversies under federal law. Neither the president nor the Supreme Court can seize from Congress the power of legislation. Thus, Article I of the Constitution vests only in Congress the “legislative powers herein granted,” and Article III vests the judicial power in the Supreme Court and in inferior tribunals established by Congress.
Thomas Jefferson believed “the leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other.” The Constitution allows only very specific ways for one branch to intrude into the affairs of another. It explicitly grants the president a limited veto, subject to override by two-thirds of both houses of Congress. The Constitution creates limited exceptions to the president’s exercise of the treaty and appointment powers by requiring Senate advice and consent – otherwise, the executive would enjoy both powers alone.
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