This article will analyze the Opinion Clause’s text, its history and intent, and its potential functions as a power. Part II catalogues much of the prior scholarship on the Opinions Clause, which generally fits into two categories: the anti-unitary approach, which argues that a substantive reading of the Vesting Clause renders the Opinions Clause redundant, and the unitary response, which essentially accepts that redundancy. To some extent, both sides miss the mark. The unitary approach misreads the text, assigning great substantive weight to the descriptive Vesting Clause, while assigning descriptive status to the substantive Opinions Clause. The anti-unitary approach, on the other hand, neglects to analyze the substantive powers of the Opinions Clause and what they mean for the constitutional nature of the presidency. As a result, while anti-unitary scholars are correct in that the Opinions Clause refutes a substantive reading of the Vesting Clause, their position is undermined by their failure to advocate for a definable alternative. This article fills this space.
Part III focuses on the text of the Opinions Clause and analyzes its implications for the Presidency. The text vests the president with discretionary power to inform himself of the workings of the entire executive branch. On the other hand, the limited nature of this power suggests that the Constitution does not vest the president with unenumerated powers. For example, the Opinions Clause grants the president the authority to require a principal officer report to him, but it does not grant the president the power to remove that officer. To close this argument, the Opinions Clause and the broader structure of Article II is used to refute the unitary argument that the Vesting Clause fills in any of the gaps in power left by the Opinions Clause. Part IV assigns the Clause its historical significance by analyzing its introduction and adoption at the Philadelphia Convention. Then, it is shown that the Clause serves James Madison’s and the framers’ purpose of the presidency: to be a republican check on a factious legislature. To illustrate, Part V analyzes President Washington’s use of the Opinions Clause to prepare and execute a response to the Whiskey Rebellion. From this historical example, an inference is made of three Opinions Clause powers vested uniquely in the president: the Unitary Political and Legislative Power, the Unitary Judicial Power, and the Unitary Executive Power. These three powers enable the president to protect the executive branch from both legislative and judicial encroachments, garner political support amongst the electorate, and unify the executive branch even in situations where congress has restricted the president’s legal authority.
Finally, Part VI examines the recent practices of President Trump through the lens of the Opinions Clause, namely, President Trump’s attempt to use the Opinions Clause for his initial justification for the firing of former FBI Director James Comey. This Part includes the discovery of potentially troubling facts centered around the current President’s actions which tend to compromise the independence of the Department of Justice. In contrast to President Washington, who used the power of the Opinions Clause to further his legislative, judicial, and executive policies in crushing the Whiskey Rebellion, President Trump’s actions suggest a reason the framers granted the president this more limited power—to allow Congress the flexibility to regulate the execution of the law and prevent presidential abuse of power. Additionally, after documenting the evidence as we now know it, this Section turns to the steps congress can take on the basis of the correct reading of Article II. Congress can insulate inferior officers such as the FBI Director from reporting directly to the president, prevent presidents from ordering politically motivated investigations, and protect any officer, including Special Counsel Robert Mueller, from at-will removal.
Recommended CitationZachary J. Murray, The Forgotten Unitary Executive Power: The Textualist, Originalist, and Functionalist Opinions Clause, 39 Pace L. Rev. 229 (2018)
Available at: https://digitalcommons.pace.edu/plr/vol39/iss1/5