A Separation of Powers Jurisprudence that Aggrandizes Judicial Power

The National Constitution Center is doing a series of essays on the provisions of the Constitution. It asked Peter Shane of the Moritz College of Law at Ohio University and me to write about The Treaty Power and the Appointments Clause which together compromise Article 2, Section 2. We wrote a joint essay describing where the Supreme Court case law leaves us and then short essays of our own summarizing where the law should be.

Mine sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the Clause, Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law. Here is my general take on the interpretive method that should be followed:

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.

In particular, I am critical of the Court’s usurpation of  decisions about when the President can fire his executive officers:

             The Appointments Clause must be read against the background of “the executive power” granted to the President. That authority included the traditional powers of an executive, not simply enumerated powers as those specified in Article I. Article II then qualifies that understanding by expressly giving some of the executive’s traditional powers to Congress. In the Appointments Clause, the Senate is given the power to advise and consent to nominations. Because the Constitution does not change the executive’s power to dismiss subordinate officers, the President retains that unqualified power, as it was part of the traditional executive authority, . . The contrary decisions of the Court are both wrong and unclear.  In Morrison v. Olson, for instance, the Court did not offer a rule for determining when Congress could insulate the President’s power, but made instead the question depend on such factors as the scope and authority of the office at issue. This aggrandized the Court’s power and unsettled an established framework for government.

I hope this essay highlights one of the greatest problems of constitutional jurisprudence—the Supreme Court’s tendency to expand its own powers. This tendency, is, of course, even more obvious in its jurisprudence of unenumerated rights, which allows justices to pick and choose what rights they believe are fundamental.   But it is important to understand that the structural provisions of the Constitution have been distorted by the same will to power.