Some Answers to Justice Barrett's Questions in Trump v. Slaughter

Why the Executive Power Vesting clause of Article II compels a holding that the President has the power to remove Federal Trade Commissioner Rebecca Kelly Slaughter.

Justice Barrett asked several good questions yesterday at oral argument in Trump v. Slaughter, which deserve a further response.

First, Justice Barrett asked Solicitor General D. John Sauer whether the Court should rest its holding in this case on the allegedly narrower grounds of removal as flowing from the Take Care Clause of Article II, Section III, or as being an incident of the Appointment Power, rather than holding that the Executive Power Vesting Clause confers the removal power.

The Take Care Clause argument overlooks the fact that the body of the Constitution confers what it calls "Power" only in a limited number of places: the three Vesting Clauses; the eighteen clauses that confer limited and enumerated 'Powers' on Congress in Article I, Section 8; and a few other places. There are, to be sure, other clauses that confer power elsewhere in the Constitution without using the word "Power," like the New States Admission Clause, but they are few and far between. It would be textually odd for the removal power, which is a part of "The President's Power to Execute the Laws"—a power that the President assuredly has—to be found in Article II, Section 3 as the fifth in a series of six duties that Article II, Section 3 imposes upon the President and that does not use the word "Power."

Under the canon of construction noscitur a sociis, the meaning of a clause is illuminated by the company of the clauses with which it is linked. The Take Care Clause appears in between the Clauses imposing duties on the President to (1) receive ambassadors and other public ministers and (2) to commission officers. All of this is in a paragraph that begins by imposing on the President the duty to give State of the Union addresses and the duty to recommend to Congress new laws.

Imposing a duty on the President could be seen as granting the President a power, but the more plausible reading of Article II is that the Vesting Clause of Section 1 grants the President the sole but delegable power to execute the laws. Section 2 then explicates and adds content to this open-ended grant of the executive power, conferred on the President alone by Section 1, by making clear that the President is the Commander in Chief of our military and that he has the pardon power and that, with the Senate, he has the power to make treaties and appoint all officers of the United States and acting on his own to make recess appointments. Section 3 of Article II then imposes six duties on the President including the duty to take care that the laws be faithfully executed, a duty that the President can only fulfill because Section 1 of Article II has already conferred upon him the executive power. And Section 4 makes it clear that Presidents and Vice Presidents, unlike British Monarchs, are subject to impeachment.

The Take Care Clause descends from a clause in the English Bill of Rights of 1689, which was understood as taking away a power originally claimed by King James II that he could suspend or dispense with an Act of Parliament. English kings continued to remove officers long after the enactment of the Bill of Rights of 1689. The Take Care Clause's original Eighteenth Century meaning was that the President had no power to suspend or dispense with enacted statutes at will. There is nothing in the original Eighteenth Century history of the Take Care Clause that even remotely suggests that that Clause was a source of the removal power.

In contrast, as I explain in my amicus brief in Trump v. Slaughter, with former Attorneys General Ed Meese and Michael Mukasey, Presidents Washington, Adams, and Jefferson and Congress, in the Decision of 1789, all saw the Executive Power Vesting Clause as being the source of the President's removal power. Looking for the removal power in the Take Care Clause is like looking for an elephant in a mousehole.

The argument that the removal power is an incident of the Appointment Power is technically correct because the President can refuse to appoint one of his own nominees who the Senate has confirmed, but beyond that the argument seems implausible given recent Supreme Court precedent. It is an implausible source of the removal power because Senate confirmation is such a huge constraint on who the President can appoint. The repeal of the Tenure of Office Act, and the concession by Congress that it had always been unconstitutional, makes clear that presidential removals cannot be conditioned on Senate consent to the removal. Bowsher v. Synar, 478 U.S. 714 (1986), clearly established that Congress cannot be given any role at all in removing officers. Moreover, an argument that officers not appointed by the President but who are exercising executive power are not removable at will by the President is foreclosed by the Supreme Court's decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), which says that all exercises of executive power must be made only by officials who are removable at will by the President.

To limit presidential removal power to only those officers whom the President appoints would leave vast numbers of inferior officers, who exercise executive power but who have been appointed by the Heads of Departments, unremovable by the President. This would hugely curtail presidential power over vast areas of the executive branch. It would also potentially force the President to fire a Head of Department, whom he likes, to get rid of an inferior officer who is misusing the executive power that Article II, Section 1 gives to the President alone. Again, the Decision of 1789 understanding of James Madison that the removal power is a part of the President's "executive Power" seems more plausible.

It is the case that the Supreme Court correctly held in Ex Parte Hennen, 38 U.S. 230 (1839), that the officer who makes an appointment can remove the appointee at will. But it does not follow from that that a President cannot remove at will an inferior officer who was appointed by the Head of a Department but who is exercising executive power as was said in Seila Law. Moreover, although United States v. Perkins, 116 U.S. 483 (1886), held that Congress could limit the removal power of Heads of Departments as to inferior officers whom they appoint, it does not follow from that that Congress could also limit the President's removal power at will when those inferior officers are exercising executive power. Again, Seila Law forecloses such an argument.

The case for presidential removal power under the Executive Power Vesting Clause of Article II is strengthened if one compares the Vesting Clauses of Articles I, II, and III with one another. It makes sense to compare the three Vesting Clauses with one another under the noscitur a sociis canon of construction that extremely similar clauses in a text should be construed according to the company they keep.

The Vesting Clause of Article I confers only all legislative powers "herein granted" whereas the Vesting Clause of Article II confers all of the executive power on the President alone. Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting). This suggests that the executive power includes some very limited inherent powers like the removal power, or the protective power recognized by In re Neagle, 135 U.S. 1 (1890). See also United States v. Midwest Oil, 236 U.S. 459 (1915) (presidential power to withdraw federal lands from public use); United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936) (presidential foreign affairs power). The lesson taught by the Vesting Clause of Article I as to the Vesting Clause of Article II is that the President has more executive power than merely that which the rest of Article II "herein grants."

Turning to the Vesting Clause of Article III, we must note that it is the only grant of power to the federal courts in all of Article III. This strongly suggests that the similarly-worded Vesting Clause of Article II is a grant of power to the President, which is expanded on by Article II, Section 2; as to which duties are imposed in Article II, Section 3; and which is capped by Article II, Section 4 rendering the President and Vice President impeachable.

The Vesting Clause of Article III also confers the judicial power on both the Supreme Court and the inferior federal courts. This makes the fact that the Vesting Clause of Article II confers the executive power only on the President especially stark. The lesson taught by the Vesting Clause of Article III as to the Vesting Clause of Article II is that while the Supreme Court may reverse judgments of the inferior courts, it cannot remove the judges who sit on those courts. In contrast, the Vesting Clause of Article II does give the President the power to remove any officer who is exercising executive power.

It is hard to imagine, reading the three Vesting Clauses in a noscitur a sociis fashion, that executive branch officers inferior to the President cannot be stripped of their executive power, i.e., by firing and removal by the President.

Justice Barrett also asked counsel for Slaughter how old the idea of independent agencies is, while quite rightly expressing skepticism as to the Sinking Fund being an independent agency but wondering whether the Interstate Commerce Commission had been an independent agency since the late nineteenth century. In Shurtleff v. United States,189 U.S. 311 (1903), the Supreme Court held that the President could remove an officer of the United States at will even if the statutory office which he held provided for removal only in cases of "inefficiency, neglect of duty, or malfeasance in office." The court upheld presidential removal power in such cases, unless the statute expressly forbade it. For officers to be independent under Shurtleff, a statute would have to read that the officers were removable for "inefficiency, neglect of duty, or malfeasance in office, and for no other reason."

Since the organic statute creating the Federal Trade Commission did not include this "and for no other reason" requirement of Shurtleff, the Supreme Court in Humphrey's Executor v. United States, 295 U.S. 602 (1935), actually misread the FTC's statute, which was enacted after the rule of Shurtleff had been proclaimed. The Supreme Court wrongly concluded in Humphrey's Executor, that Congress had created the FTC to be an independent agency in a portion of its opinion in that case, which no one ever reads, and which is inconsistent with Shurtleff v. United States.

The Supreme Court in Humphrey's Executor first misread the FTC organic act as creating an independent agency, and it then misread the Constitution as rendering a headless fourth branch of the government to be constitutional. Both parts of the Humphrey's Executor opinion are wrong. At a minimum, the Supreme Court should have read the FTC Act to be constitutional, not unconstitutional. After 1935, Congress naturally rushed in to make more and more agencies independent, but the concept of independent agencies originated in 1935—146 years after the idea of presidential removal power had been liquidated as a core executive power.

Every President since 1935 has tried to assert as much control as he could over the headless fourth branch of the government, as is shown in Steven G. Calabresi & Christopher Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008). Franklin D. Roosevelt's Brownlow Committee on administrative law reform called for eliminating independent agencies; President Truman endorsed an even more expansive reading of the Vesting Clause of Article II than the one argued for in Trump v. Slaughter in the Youngstown Steel Seizure Case, 343 U.S. 579 (1952); and President Eisenhower fired David Wiener from the War Claims Commission, as shown by Wiener v. United States, 357 U.S. 349 (1958), expressing opposition to Humphrey's Executor. The Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA) were each given additional powers by Presidents Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan to rein in the Headless Fourth Branch of the Government. The notion that Presidents have passively acquiesced in the stripping of their removal power over independent agencies is incorrect, as the Calabresi & Yoo book proves.

The Supreme Court should thus overrule Humphrey's Executor in Trump v. Slaughter—but simply because the existence of independent agencies violates the Executive Power Vesting Clause of Article II. This argument is compelled by the text of the Constitution no matter what the history prior to 1789 was and no matter what the early practice under the Constitution was. Judge Robert H. Bork once said that "We are bound by the laws that dead people make, not by their unenacted opinions." The Tempting of America (1990). There is quite simply no way to square a headless fourth branch of the government with the words of the Constitution, which create only three branches of government no matter what the pre-1789 history or the post-1789 practice suggests.

Comments

[dwb68]

For the Fed: The Federal Reserve has two roles.
1/monetary policy. This is the domain of congress (the power to coin money is an enumerated congressional power). They have delegated this to the fed (most recently, 1977 FOMC act that mandates maximum unemployment/minimum inflation).

2/ regulatory--bank regulations etc.

The president likely has removal powers related to 2, but not 1... which would require fed governors to be "mostly" one or the other, and/or the FOMC could not have regulatory powers.

[Lee Moore]

I should say that this is mostly the wrong way around.

Congress has the legislative power "to coin money" - ie it can legislate that 10,000,000 coins of composition XYZ, weight W, with head looking like this and tail looking like this, be manufactured and distributed. But everything in this process beyond the act of legislation is an executive task, which has to be handed off to the President and his minions.

The same goes for the power "To establish Post Offices and post Roads" - Congress gets to decree their establishment by statute, it does not get to manage the building and the digging. That's the executive's task. And likewise for "To define and punish Piracies and Felonies committed on the high Seas" - Congress can't do the punishing, it can define the punishment. But the judiciary does the judging and the executive does the lopping off of heads, or incarceration.

Thus to the extent that Congress delegates the executive activity of coining money, to somebody other than the President - eg an "independent agency" like the Fed - that's unconstitutional, as an attempted runaround the Article 2 vesting power. This can be "cured" by ensuring that the "independent agency" is not independent of the President's control - ie he can fire the people running it.

But if Congress delegates the , or some of the, legislative activity of coining money - eg specifying the number of coins to be issued, their weight, their design etc, to an "independent agency" like the Fed, that's not an unconstitutional run around Article 2. Though it might be unconstitutional under the non - delegation principle.

As for regulatory / bank regulation - to the extent that it is merely delegating the power to make regulations - that's not unconstitutional as a breach of Article 2, because making regulatiins is not an executive power.

Though enforcing regulations does involve executive power, so the enforcement cannot be put beyond the President's control.

And insofar as regulations may be challenged there's a role for the judiciary too, which Congress cannot place in an independent agency beyond the reach of the Article III courts. (Though it can certainly create a branch of the Article III courts with exclusive jurisdiction over banking regs.)

Independent agencies typically involve executive and non-executive activity, which the same officers in charge of both. If those officers are protected from at-will removal by the President, that's an Article II constitutional problem. Congress could try to split them into executive agencies and non-executive, ie regulation making, agencies, with different officers in charge. The latter would dodge the Article II problem. And Congress would eventually find out from SCOTUS how much delegation of regulation making SCOTUS was OK with.

[dwb68]

Congress legislates concrete spending; concrete taxation; how much debt can be issued; how much money could be coined; and the price of gold. The executive is given numerical goals for all of those. Combined, those were sufficient to determine monetary policy and inflation until the early 20th century.

The Federal Reserve has no such rule for inflation. They have no legal inflation target. If Congress gave the Fed something Concrete in numerical, say like a Taylor rule for monetary policy (https://en.wikipedia.org/wiki/Taylor_rule), then maybe I could buy that the Federal Reserve was an was an executive function. But every time they grow their balance sheet, shrink their balance sheet, set a new inflation target, they are exercising a legislative function, deciding all on their own how much money to print. The president does not get to decide how much money to print. All he gets to do is print the amount of money Congress dictated could be printed.

Checks and balances, and fed independence, is very important in a fiat money system unless you like Argentinian style inflation.

[Lee Moore]

But every time they grow their balance sheet, shrink their balance sheet, set a new inflation target, they are exercising a legislative function, deciding all on their own how much money to print.

No, they are not simply deciding how much money to print (in reality how much money to credit to the accounts of commercial banks) they are then actually going ahead and "printing" it. The latter is an executive action. So when they have a policy meeting and decide, and announce, "we're going to do $50 billion of quantitative easing a month" you might try to say that is "legislative" - although it isn't really because it's an objective they are setting for themselves, not a rule they are imposing on anyone else.

But when they go ahead and buy $50 billion worth of financial securities from the banks, and credit the banks with $50 billion, that's execution, not legislation. If the Fed only had the power to say "$50 billion a month of quantitative easing sounds like it would be good for the economy, we decree that it should happen" but didn't have the power to execute that, nobody would pay them any attention.

In reality, a Fed announcement of an inflation target or a proposed quantitative easing plan is akin to Trump saying "we're going to deport 2 million illegal aliens." It's a target for later executive action, internal to the executive branch.

If Congress passed a law saying "Yo, Trump, you must deport 2 million illegal aliens this year, and here's $25 billion of appropriations to achieve it" - that would be legislative activity, as Trump, as President, could not (legally) say "nah, don't think it's worth doing thanks." Whereas if he had set that target for the executive branch himself, he could (legally) change his mind.

Checks and balances, and fed independence, is very important in a fiat money system unless you like Argentinian style inflation.

As the wise and fragrant Justice Barrett reminded us recently, though in somewhat more measured terms - "policy don't mean squat to the courts - if courts start doing policy, they're outta their lane."

[dwb68]

when they have a policy meeting and decide, and announce, "we're going to do $50 billion of quantitative easing a month" you might try to say that is "legislative" - although it isn't really because it's an objective

Sure, and if the President decides to borrow and spend a trillion dollars without congressional legislation, hey thats just executive action too, because hes setting his own objective.

Maybe the President could just mint a trillion dollar coin and spend that, too! https://en.wikipedia.org/wiki/Trillion-dollar_coin

magic!

uhhh... no. Congress sets concrete laws and has to authorize dollar amounts.

[Lee Moore]

if the President decides to borrow and spend a trillion dollars without congressional legislation, hey thats just executive action too, because hes setting his own objective.

Yes, that's executive action. But without Congressional legislative action authorizing the borrowing and spending it's unlawful executive action. That's what the regular "debt limit" pantomime is all about. Congress has already authorized borrowing, and spending, by legislation, it's just that it has set limits on borrowing that do not, from time to time, allow the spending of amounts it has authorized to be spent, because there's not the money there to spend.

But the borrowing and spending when it happens is executive action.

No one - or almost no one - is saying that the President has unlimited executive power. The Article II argument is simply that such federal executive power as there is, is vested in the President. Thus the President is not authorized by Article II to borrow and spend whatever he likes - there are legal limits to borrowing and spending set by laws made by Congress. Article II simply says that Congress can't vest the power to borrow what it wants borrowed, or spend what it wants spent, in anyone other than the President, or in officers who the President can direct.

[dwb68]

Allowing the President to fire FOMC governors and effectively set interest rate and monetary policy (grow the Fed balance sheet) would give the President unfettered ability to borrow and spend, because there are no legal limits currently. He could say he was following current law and monetize trillions in debt.

[Lee Moore]

because there are no legal limits currently

There are. But even if there weren't, Congress could impose any limits it likes by legislating. Or it could split the Fed into a legislative agency that sets the rules and the limits, and which is not subject to the President's whim; and a executive agency that does the executing, which is subject to the President's control.

[Dick King]

I used to buy the argument that the congressional debt limit was incoherent because the debt was the difference between the sum of all spending [authorized by Congress] and all taxes collected [also by acts of Congress]. Then Biden spent a sizable fraction of a trillion dollars by forgiving student loans [yes, it took him a while to get it past the Court, and it was less than he intended] without any act of Congress.

-dk

[Botaglove]

A unified Executive is one in which all 2 million or so people employed in the Executive act only consistent with their loyalty to the Executive. Thus, for example, administrative or immigration judges can be fired by the Executive for not dispensing rulings the Executive likes. Every possible member of th Executive, including agencies tasked with making fair decisions regarding interest rates or health policy, can no longer be trusted to make any decisions on the basis of reason but should be assumed to decide only as the Executive wants it to be.

I fail to understand, as a matter of originalism, why we would think the Founders would think this is a good idea. Or more to the point a consitutionally obligatory idea

The Court's hoped for future is one in which the only sources of power are the Court, a dysfunctional Congress rotting away uselessly, and an Executive as unified as a club.

[Lee Moore]

A unified Executive is one in which all 2 million or so people employed in the Executive act only consistent with their loyalty to the Executive.

Obedience is the word you were looking for, rather than loyalty. In an army, or a business, soldiers or employees are normally expected to follow the orders / instructions of their superiors, up to and including the C in C or the CEO. That doesn't mean that employees can't use their own brains or their own initiative - it just means that they can't do things contrary to their instructions or orders, without facing disciplinary measures, which might include getting fired. Or maybe shot.

Every possible member of th Executive, including agencies tasked with making fair decisions regarding interest rates or health policy, can no longer be trusted to make any decisions on the basis of reason but should be assumed to decide only as the Executive wants it to be.

Again, in any organization, you can use your reason. Except and to the extent that your reason clashes with your boss's reason. But what if the boss isn't using reason but his feelz that strike you as dumb ? Then you can buckle down and do as your told, or you can quit. The thing is - what you think is your reason may be thought by your boss to be just feelz - so there has to be a hierarchy in which someone has the authority to decide what gets done. And that would be your boss. And so on up to the boss's boss.

Stop being a teenager, would be my recommendation.

I fail to understand, as a matter of originalism, why we would think the Founders would think this is a good idea.

Originalism is not a theory of "good ideas." It's a theory of constraining judges to follow the orders of their superiors - the legislature or constitution drafters. Just like other officials, judges are supposed to follow orders, whether they think the orders are "good ideas" or not. There's a hierarchy you see.

Or more to the point a consitutionally obligatory idea

Give us a textually convincing reading of "The executive power shall be vested in a President of the United States of America" which contemplates someone other than the President having some of the executive power of the federal government.

Not whether it's a "good idea." Just whether it can be arrived at by ordinary English speakers.

[Incunabulum]

Sounds like we should ensure we vote for executives that will do the things we want then.

[Stupid Government Tricks]

All of this is in a paragraph that begins by imposing on the President the duty to give State of the Union addresses and the duty to recommend to Congress new laws.

For someone trying to pick nits to arrive at his desired conclusion, that's a pretty piss poor summary of a simple clause.

He shall from time to time give to the Congress Information of the State of the Union

Doesn't say "give ... addresses". Says "give ... information".

[Michael Ejercito]

This argument is compelled by the text of the Constitution no matter what the history prior to 1789 was and no matter what the early practice under the Constitution was.
The thing is, the Supreme Court already upheld the exercise of judicial power outside the strictures of Article III. See Ortiz v. United States, No. 16-1423 (June 22, 2018) On doing, so the Court relied on history and tradition, citing plenary grants.

And the congress under the Articles of Confederation passed the Northwest Ordinance, which actually established a subordinate government with its own legislature, executive, and judiciary.

https://www.archives.gov/milestone-documents/northwest-ordinance

I do not argue that Congress can simply make the rest of the executive branch an independent agency, any more that it can vest all original jurisdiction into a court outside of Article III. And I do not suggest that an independent agency that had FTC-like authority (or even 1934-era FTC-like authority) existed in 1800.

But the Supreme Court has relied on history and tradition to determine if an exception to the Vesting Clause exists- as it does for territorial courts, the DC judiciary, and courts-martial.

[MollyGodiva]

This is a massive mammon of bull shit meant to cover up what the Constitution actually says. The Constitution is one of enumerated powers, not implied read-between-the lines powers.

Congress alone has the powers to make the laws for the Government.
A1S9: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Other Executive Branch Officers exist and have duties, thus no "unitary executive".
A2S2: "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,"

The President is bound by federal law.
A2S3: "he shall take Care that the Laws be faithfully executed"

There is zero mention of the President being able to fire EB officers. The line "The executive Power shall be vested in a President" can not be read to invalidate what I quoted. The founders did not hide a vast presidential power in those 8 words.

The independent agencies are accountable to Congress (and thus the people) and managed by the President. Not complicated.

[Michael Ejercito]

It is implausible that Congress could establish the Office of Second-in-Command, who has authority over the entirety of the Executive Branch apart from the President, and who serves for life.

[MollyGodiva]

That is extreme but not unconstitutional if structured properly. The president is solely focused on his enumerated powers and duties and the day to day bureaucracy is handled by a qualified person/team. It is certainly more constitutional than having an unconstrained president dictator as the MAGAs on SCOTUS want.

[Jack Jordan]

Mr. Calabresi is a false prophet. He seeks to profit off misrepresentations of the plain meaning of the plain text of our Constitution.

Article I “vested in a Congress” absolutely “All legislative Powers" that were "granted” by the People to the entire United States government. The People expressly explained that such legislative powers meant and mean only the power (and the duty) of Congress to “make all Laws” that are both “necessary and proper for carrying into Execution” not only all the “Powers” of Congress, but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Clearly and explicitly, that meant and means the power (and the duty) to “make all laws” that are “necessary and proper for carrying into Execution” absolutely all powers vested in any part of national/federal government. Clearly and explicitly, the power the People granted Congress (and the duty the People imposed on Congress) extend to making all laws that are necessary and proper to govern how all executive and judicial officers support our Constitution.

The People clearly and emphatically vested in Congress the power to enact legislation that created departments, agencies, etc., and to precluded the president from removing officers of such organizations at will.

Article II “vested in a President” only “The executive Power.” The People expressly explained that “the executive power” meant and means only the power (and the duty) to “take Care that” federal “Laws be faithfully executed” and do whatever (and only whatever) is necessary and proper to “faithfully execute the Office of President of the United States” to “preserve, protect and defend [our] Constitution.”

Article III vested in courts only “The judicial Power.” The People expressly explained that “the judicial power” meant and means only the power (and the duty) to say how our “Constitution, the Laws of the United States, and Treaties” govern particular “Cases” and “Controversies.”

James Madison even explicitly emphasized the foregoing in Federalist No. 44. The purpose of “the executive and judiciary departments” is only “to expound and give effect to the legislative acts.” Of course, “the legislative acts” were defined by the People who established and emphasized that “the supreme Law of the Land” was limited to our “Constitution, and [federal] Laws” that were “made in Pursuance” of our Constitution “and all Treaties.”

The plain meaning and plain purposes of the foregoing plain text is the reason that Madison emphasized in Federalist No. 51 even more that Justice Scalia emphasized in his dissenting opinion in Morrison v. Olson. Our “Constitution” must “be considered under two general points of view [about power]. The FIRST relates to the sum or quantity of power” that the People “vest[ed] in the government, including the restraints [the People] imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches [i.e., legislative, executive and judicial].”

The primary distribution of power is between the sovereign people and all our public servants, so “all the appointments for” all national “executive, legislative, and judiciary magistracies” are “drawn from the same fountain of authority, the people.” “But it is not [even] possible to give to each department [legislative, executive and judicial] equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”

[Jack Jordan]

The fanatics of executive power often abuse particular words written by Alexander Hamilton or Justice Scalia to attack and undermine the principles they expressed.

In Justice Scalia’s famous dissenting opinion in Morrison v. Olson (which many fanatics of executive power routinely invoke to support the myth of the Unitary Executive), Justice Scalia emphasized the opposite of executive power. Even more important, he emphasized that the People divided and arranged all power of all three branches of government to serve the public and to secure a government of laws and not of men (which is the polar opposite of the so-called theory of the Unitary Executive):

"The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that '[a]ll legislative Powers [that were] granted [by the People] shall be vested in a Congress of the United States.' Article III, § 1, provides that '[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.' And [ ] Art. II, § 1, cl. 1, provides that '[t]he executive Power shall be vested in a President of the United States of America.' "

In Morrison v. Olson in 1988, Justice Scalia followed the foregoing by highlighting the following self-evident but vital truth that had been highlighted by James Madison 100 years earlier in 1788 in Federalist No. 51:

“But it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”

Far more important and far more fundamental, Justice Scalia emphasized, “The principle of separation of powers is expressed in our Constitution” (in which “the legislative authority necessarily predominates”) specifically to secure “a government of laws and not of men.”

Justice Scalia also expressly emphasized how the foregoing served to secure the rights, liberties and powers of the People, not the mere aggrandizement of any purported public servant:

"[W]e have 'a government of laws and not of men.' Many Americans are familiar with that phrase; [but today] not many know its derivation. It comes from [ ] the Massachusetts Constitution of 1780, which [expressly and directly emphasized that this was the purpose of the separation of powers ] as follows:

'In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.'

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that '[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.' [ ] Without a secure structure of separated powers, our Bill of Rights would be worthless [ ]."

[Jack Jordan]

Presuming or pretending that the People intended that every man who became President should (or always would) have sole power over the livelihood of the principle executive officers of the various departments and agencies defies common sense and some of our nation's most important history.

The original Constitution (especially its ratification) was to a great extent a reflection of the extreme--and never repeated--confidence that the People had in the man who was believed by many to be the Father of His (Our) Nation. Washington was great and revered even in his own time, especially, because he did not grasp for power, glory and poll numbers as greedily Trump does. There is no reason whatsoever for anyone now to believe that anyone ever believed (or that our Constitution was written and ratified based on the belief) that a public servant of Washington's caliber would re-appear at all, much less frequently, in our nation's history. Quite the opposite.

Our Constitution was written and ratified by the People to be able to change with the times, to meet the exigencies of all times. Our Constitution was written and ratified by the People to help us restrain tyrants, despots and demagogues who might succeed in winning the favor of electors. Trump is merely an excellent example of why we need laws better restraining the power of men who would be tyrants and despots. Trump highlights that such laws are "necessary and proper for carrying into Execution" certain "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," i.e., vested in the President.

In The Federalist No. 84, Hamilton emphasized that “[t]he magistrate” (the president “in whom the whole executive power resides cannot of himself make a law, [even] though he can put a negative on every law [veto it]; nor” did we vest power in the president to “administer justice in person, [even] though he has the [power of] appointment of those who do administer it.” But presuming or pretending that the President should have absolute, uncontrollable power to act on caprice to fire many of our most important public servants does exactly what Hamilton said we did not do.

In The Federalist No. 78, Alexander Hamilton (quoting Montesquieu) also emphasized that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Hamilton further emphasized the danger of our current circumstances: “liberty” will “have every thing to fear from [any] union” of the power to judge “with either of the other departments” (executive or legislative). One man possessing the absolute, uncontrollable power to act on caprice to fire many of our most important public servants certainly deprives them of liberty to fulfill their oaths to support our Constitution, and their oaths were designed and required by the People to secure our liberty.

As James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” An example of such tyranny is one man possessing the absolute, uncontrollable power to act on caprice to terminate the current employment and affect the future employment of many of our most important public servants.

Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because . . . the same” executive or legislature would “enact tyrannical laws” and then “execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”

As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” The Framers devoted considerable effort to limiting powers. That is exactly why every state and federal Constitution separates, weaves together and restrains the powers of legislators, chief executives, judges, and even the sovereign people, themselves.