The Volokh Conspiracy
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The Opinions Clause Makes A Rare Appearance in Trump v. New York
The majority suggested that preventing the Secretary of Commerce from informing the President about census data could "implicate" the Opinions Clause
Today, the Supreme Court decided Trump v. New York. In this case, the District Court enjoined the Secretary of Commerce from providing certain census data to the President. The Supreme Court vacated the lower-court decision on jurisdictional grounds. There was no merits ruling, but there was a reference to an obscure constitutional provision.
The Opinions Clause of Article II provides, "The President…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."
This Clause is seldom litigated for obvious reasons: the government seldom puts restrictions on the sort of information the President can request from his principal officers. (Fun fact: the phrase "principal officers," a common feature of Appointments Clause jurisprudence, does not actually appear in the Appointments Clause; it appears only in the Opinions Clause). But welcome to 2020. A federal district court issued an injunction that barred the Secretary of Commerce from providing certain information to the President.
Today, the Supreme Court hinted that this injunction may violate the Opinions Clause:
The remedy crafted by the District Court underscores the contingent nature of the plaintiffs' injuries. Its injunction prohibits the Secretary from informing the President in his §141(b) report of the number of aliens without lawful status. In addition to implicating the President's authority under the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself "in the abstract," Summers v. Earth Island Institute, 555 U. S. 488, 494 (2009).
Woah! Talk about a drive-by constitutional ruling. The injunction, based on the APA, may be unconstitutional if it unduly burdens the President's ability to request opinions from the Secretary?! I did not see this argument raised in the SG's opening brief or reply brief. And the issue did not come up during oral arguments. This single aside may be the most significant aspect of the jurisdictional punt.
Last term, Justice Kagan referenced the Opinions Clause in footnote 3 her Seila Law dissent:
Article II's Opinions Clause also demonstrates the possibility of limits on the President's control over the Executive Branch. Under that Clause, the President "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." §2, cl. 1. For those in the majority's camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads' opinions? The Clause becomes at least redundant—though really, inexplicable—under the majority's idea of executive power.
I have worked on a draft article that focuses on this footnote. The analysis in footnote 3 provides some insights into how Kagan reads constitutional text. I will be happy to share that article in due course.
