The Department of Justice under Attorney General Sessions has been criticized for changing its positions in litigation from those taken by the Obama administration on such questions as whether Title VII prevents discrimination on the basis of sexual orientation. Some of the criticism has been on the merits of the new position, but others have complained about the wisdom or propriety of changing a position that the government has already advanced in court.
This latter kind of complaint is wholly without merit. The Department of Justice is not like a private litigant and should change positions to reflect the jurisprudential stance of the President and his new administration. Unlike a private client, the President has taken an oath to “preserve, protect and defend the Constitution of the United States,” and must “take Care that the Laws be faithfully executed.” Thus, as I have noted long ago, the Attorney General and his subordinates have obligations that no private lawyer has: not simply to prevail in litigation, but to advance the President’s interpretation of the Constitution and the laws made under it.
To the objection that President Trump, a non-lawyer, has no jurisprudence, the Attorney General and his subordinates should ask themselves what the President would do if he knew as much about jurisprudence as they do. With President Trump, they are substantially aided by President’s own actions. His list of potential Supreme Court justices were to a person committed originalists and textualists.
I was talking about the Take Care Clause today and I realized that there was an important connection between the original meaning of two clauses I had never previously recognized: the Take Care Clause and the Equal Protection Clause. Most people don’t see much of a connection, but there is an important connection as to the original meaning: they are both about prohibiting executives from not enforcing the law. While the modern meaning of the Equal Protection Clause is that it protects against unequal laws, the probable original meaning is different. The Clause provides that no state shall “deny to any…
President Trump must soon decide whether to say “You’re fired” to Richard Cordray, the Director of the Consumer Financial Protection Bureau (CFPB). Cordray’s policies are clearly at odds with the deregulatory impulse of the administration, whose fate depends on whether it can substantially increase prosperity beyond the sluggish growth of the Obama years.
The obstacle to getting rid of Cordray is that the statue setting up the CFPB permits the President to fire Cordray only on the basis of “inefficiency, neglect of duty, or malfeasance in office.” One possibility would be to fire him anyway on the theory that the restriction is unconstitutional. Indeed, in PHH Corp. v. CFPB, a panel of the District of Columbia Circuit held that it was unconstitutional to limit the President’s removal power over the director. It acknowledged that the Supreme Court has upheld insulating other executive agencies, like the FTC, from presidential removal. But those independent agencies were directed by multi-member commissions composed of members from different parties. The panel concluded that CFPB lacks the important check of collegial, bipartisan control, concentrating power in a single official. Thus, the Constitution required that the President have the power to remove him at will.
The difficulty with acting on the panel’s analysis is that the full District of Columbia Circuit has vacated the PHH ruling to hear the case en banc. It is true that the President could still follow the reasoning of the panel ruling and dismiss Cordray. But that action would be portrayed by the press as flouting a judicial order, even though the President is not a party to PHH v. CFPB. Moreover the President’s substantial latitude to decline to follow statutes that violate his constitutional authority is premised in part on the need to obtain judicial resolution. But here the issue would already be before a court.
The President has a better option, because he has the constitutional duty to “take Care that the Laws be faithfully executed. “
(In my first post, I discussed the nature of the prerogative power. Here I discuss whether it exists under the Constitution.)
If one were to find a presidential prerogative in the Constitution, where would it be located? Perhaps the most common answer is that the it is given to the President in the Executive Power Vesting Clause. While I believe that the Clause does provide substantive powers to the President, I don’t think it gives the President a prerogative.
There is a significant dispute as to whether the Executive Power Vesting Clause provides powers to the President. The argument for concluding that the Clause provides powers involves a comparison of the Executive and Legislative Vesting Clauses. The latter provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The former provides that “The executive Power shall be vested in a President of the United States.” While the legislative power is limited to the list of powers conferred on the Congress, the executive power is not.
Under this reading, the Constitution confers all of the traditional executive powers on the President that it does not either give to the Congress (such as the power to Declare War, which the King of England traditionally had) or limit (such as the power to appoint executive officers, which the Kind had alone, but which the Constitution gives to the President along with the Senate).
The alternative reading views the President’s powers as limited to the list of powers listed in Article II, such as the Pardon Power and the Commander in Chief Power. It views the herein granted language of the Legislative Vesting Clause as simply about denying to Congress powers that the state legislatures enjoyed, based on federalism concerns.