Law Execution and Removal Power

I have been working on a paper that seeks to apply Julian Mortenson’s brilliant “law execution” thesis to removal power. In the paper, I argue that, because the Article II vesting clause is not a grant of inherent powers to the President, removal power may be limited by Congress. The current jurisprudence on removal power is therefore consistent with the original meaning of the Constitution’s text and history.

Here is the abstract:

Recent scholarship has advanced a theory of executive power that has been termed the “law execution” thesis. This thesis holds that, contrary to mainstream conservative interpretations, “the executive Power” was not a grant of inherent powers at all. Rather, it was a vessel that relied on Congress to pass legislation for execution. Taking that thesis as correct, this paper argues that the President does not possess an unlimited power to remove executive branch officers. Instead, Congress may, pursuant to its enumerated powers, place legislative limits on removal. The Branches have historically acquiesced to these limitations, and the Supreme Court has consistently upheld minor limitations on presidential removal power. In other words, this limitation is justified based on text, practical considerations, and historical practice.

This paper further argues that historical practice is instructive for removal because it shows that history has been consistent with the original meaning of the Article II Vesting Clause. Given the limited scope of executive power, removal has properly been shared between Congress and the President, and upheld by the Supreme Court. Indeed, because of the limited scope of executive power, historical practice plays a necessary role in properly placing removal power within the structure of the Constitution. This article also synthesizes the mainstream conservative interpretations of removal power, and shows that these interpretations are wrong on text, history, and practice. Given the limited scope of the original meaning of presidential power, originalist scholars should accept existing limitations on removal power as correct. This paper seeks to add to the existing literature by applying the law execution thesis to removal power, and by arguing that removal has properly been construed as resting with Congress and the President together.

A draft of the paper will be posted to SSRN soon. All comments are welcome! Email me at patsobkowski@gmail.com.

Constitutional Law study aids for students

Hi everyone, trust that we are all practicing social distancing while maintaining our studies!

The COVID-19 pandemic has left us all in unusual circumstances. For law students especially, it is perhaps a bit odd to participate in class via Zoom. The webcam can certainly curtail the effectiveness of the socratic method and engagement in class, absent proper adjustment.

Alas, we must push forward; adapting to changing times and circumstances.

Our current situation presents lesser or greater difficulties for each student and professor, depending on individual circumstances. It has been inspiring to see my colleagues and professors doing their best to accommodate each other.

I would like to give a special shout out to my friend and colleague Ken Owen. He has taken the initiative to provide study aids for those who may be at a greater inconvenience than others. I have decided to follow his lead.

Here is a short, condensed outline that I created for my Constitutional Law class last semester:

condensed-outlineDownload

Ken also created a more detailed review document. The version attached here is unfinished, but he will post the complete version on his blog here.

Here is the unfinished document:

con-law-ii-review-in-progressDownload

For my fellow law students that are currently in ConLaw, hopefully these help a bit. I am always available to answer questions or talk about anything, so feel free to reach out.

Note: due to the limited time during semesters, the outlines cover the material that we did during class. It does not purport to be completely comprehensive. Any lingering errors in the outlines are the authors’.

Find me on Twitter: @pjsobkowski or email me: patsobkowski@gmail.com

A comment on Rudy Giuliani’s “Daily Caller” op-ed

Rudy Giuliani has an op-ed in the Daily Caller today. In it, he argues that the Supreme Court should step in and declare the ongoing impeachment of President Trump unconstitutional. He begins with the familiar criticism that “abuse of power” and “obstruction of Congress” do not amount to the “Treason, Bribery, or other high Crimes and Misdemeanors” prescribed as the criteria to which impeachable offenses must conform.

Mr. Giuliani does not stop here. He proceeds to cite Marbury v. Madison (1803) for the proposition that the Supreme Court should declare the impeachment of President Trump unconstitutional, and that judicial review warrants such a declaration:

“The reasoning of Marbury v. Madison certainly supports the court having the power to declare an impeachment as unconstitutional if it is an overreach of the carefully balanced separation of powers.”

Mr. Giuliani’s statement is inaccurate, and demonstrates that he (1) does not understand the separation of powers; (2) does not know (or care) about precedent; or (3) does not understand the separation of powers and does not know or care about precedent.

The Supreme Court has refused to interfere with impeachment proceedings for fear of violating the “carefully balanced separation of powers” that Mr. Giuliani claims to value. See Nixon v. United States. Nixon is a landmark case, commonly discussed in conjunction with the political question doctrine. Mr. Giuliani is certainly aware of these fundamental tenets of Constitutional Law, and the fact that his ignores them is disturbing.

He eagerly cites Article II’s “High Crimes” language. Curiously, he declines to cite the Constitution’s explicit commitment of impeachment to the House and the power to try impeachments to the Senate in Article I. These explicit textual commitments formed the basis for the Supreme Court’s ruling in Nixon, that questions of impeachment are unfit for judicial review. The Supreme Court has been properly deferential to Congress in these matters.

Giuliani’s failure to acknowledge these fundamental textual commitments is especially interesting given his paean to the separation of powers, and the dangers in violating this structural foundation.

If the Supreme Court were to step in and declare this impeachment unconstitutional as suggested, it could effectively give the Court oversight in impeachment proceedings. This is dangerous because impeachment is one of the only constitutional checks on life tenure granted to the justices. Further, if the Court were to grant Mr. Giuliani’s wishes, it would infringe on powers textually committed to the Legislative Branch as mentioned above.

The Constitution grants the power of impeachment to the House and Senate jointly, and the Supreme Court has duly acknowledged this fact.

Mr. Giuliani would do well to follow suit.

“To regulate Commerce… in animal cruelty?”

The President recently signed a bill into law which makes animal cruelty “in interstate commerce” a federal felony.

Kenneth Owen has an interesting analysis of this new law under the Commerce Clause here. The New Deal-era Supreme Court greatly expanded Congressional power under the Commerce Clause in the 1930s-40s. The Rehnquist Court narrowed this power beginning with U.S. v. Lopez in 1995, which struck down the Gun Free School Zones Act. Following the Lopez decision, the Act was amended to include the language “in interstate commerce.” The Court has not revisited the constitutionality of the amended Act. Owen’s post focuses attention on the “in interstate commerce” language, and whether or not such language is sufficient to warrant regulation under the Commerce Clause. But I would argue that, regardless of the jurisdictional “hook” language, the recent law is valid under the Court’s holding in Gonzales v. Raich (2005).

In Raich, the Court held that Congress had the power to regulate intrastate marijuana growth for personal use. Justice Stevens delivered the majority opinion, and Justice Scalia filed a concurrence. I think that the majority and concurrence are consistent with each other, but Justice Scalia’s articulation is more succinct than Justice Stevens’. As such, I will adopt Justice Scalia’s analysis and apply it to the animal cruelty law.

Raich involved California’s Compassionate Use Act, which legalized medical marijuana use in the state. But that law conflicted with the Controlled Substances Act (CSA), a federal statutory scheme.

Congress has broad power to regulate under the Commerce Clause. Pursuant to this power, it passed the CSA. Under Justice Scalia’s rationale, the Necessary and Proper clause grants Congress the power to regulate intrastate activity if it is necessary to achieve the goal of the broader scheme, the CSA.

The recent prohibition on animal cruelty is justifiable under Raich. Congress already legislates and regulates the interstate transportation and sale of animals. Such laws are within Congress’s regulatory power under the Commerce Clause. The prohibition on animal cruelty is necessary and proper to the broader regulation of animals moving in interstate commerce. Similar to the personal marijuana use in Raich, it is certainly rational for Congress to believe that animal abuse will have a substantial effect on interstate commerce.

For conservative legal scholars, the Rehnquist Court’s Commerce Clause jurisprudence left much to be desired. When the Court decided Lopez, many thought that the decision marked the beginning of a massive reduction in federal power. There is a consensus that this prediction never came to total fruition. Ultimately, I agree with Owen that any reduction in congressional power is unlikely to come via the recent animal cruelty prohibition.

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