The Two Constitutions
This past Wednesday, Jeff Sessions resigned as Attorney General. Immediately, the question on everyone’s mind was: what does this mean about the security of Robert Mueller in his role as Special Counsel? Will Mueller be fired by the new Acting Attorney General? Democrats in Congress immediately began advocating for a law that would give Special Counsel Mueller greater protection from the President.
I suspect that in the coming months, our political and legal systems will be faced with a situation in which Congress tries to prevent the President from perceived overreach, and the President will argue that Congress’s actions infringe on his executive prerogatives.
So, what exactly does the Constitution say about Congress’s ability to insulate Special Counsel Mueller from presidential influence?
Less than you’d think.
The United States Constitution and all of its Amendments together total 7263 words. Set in Times New Roman size 12, with standard margins, it fits on 13 pages. As a document, it is incredibly short on detail; many of its most important and most famous provisions are only a few words in length.
But the constitutional law the shapes our institutions and our lives is rooted in a very different Constitution — a common law Constitution — which is written in tens of thousands of pages of judicial opinions.
In this way, interpretation of the Constitution is a lot like interpreting the Torah, the foundation of Jewish law. The Talmud — the authoritative exegeses on the Torah — is structured in a way that it is each page centered around a very short piece of scripture, surrounded by commentary, surrounded by commentary on the commentary.
What’s interesting about this method of constitutional interpretation is that the Constitution-in-practice is just one of many possible “Constitutions” that would be equally (if not more!) consistent with the actual text. Moreover, if you believe (as I do) that the Constitution is the closest thing we have to a true “social contract,” it therefore it must be interpreted and re-interpreted with every generation — which means that the “true” Constitution is a living, fluid document.
There are lots of ways in which the Constitution is frustratingly ambiguous, but I’ll start with an example that implicates ambiguities in multiple places.
The First Amendment says that “Congress shall make no law…prohibiting the free exercise [of religion].” That prohibition applies to the states as well, through the 14th Amendment.
But what does it mean to “prohibit the free exercise” of religion. How much can you really glean from those 4 words?
For a long time, the Supreme Court held that a facially neutral law (i.e., one that did not explicitly target religion) could nonetheless violate the Free Exercise clause if it had a substantial burden on a religion. That changed with the 1990 decision Employment Division v. Smith, in which the Supreme Court upheld a law that criminalized peyote against challenges from a Native American group that used the drug in their religious ceremonies.
Reasonable people can debate the merits of Smith as a policy matter — whether or not the outcome is a “good thing” or not. But in terms of whether it is the “correct” interpretation of our Constitution, I’m sure that pretty much everyone can agree that the phrase “free exercise of religion” on its own does not provide any answers.
But the story of Smith gets more complicated. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which purported to reinstate the pre-Smith standard. But in the 1997 case City of Boerne v. Flores, the Supreme Court struck down RFRA (in part). Basically, the Supreme Court’s opinion was: Didn’t you take U.S. History and read Marbury v. Madison? WE say what the Constitution means, not Congress.
But pretend for a moment that you haven’t read Marbury v. Madison. Why does the Supreme Court get the final word on what our popular compact means? Here is the full text of what the Constitution has to say about the Supreme Court’s power in this area: “The 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.” Is getting the final word on constitutional interpretation part of the “judicial power of the United States”? Congress’s interpretation of “free exercise” in RFRA was certainly a plausible, well-supported one. Why shouldn’t the elected representatives of the people get the final say on what the Constitution means, as long as the interpretation is reasonable?
Now, if you’re saying to yourself, “it would be crazy for Congress to interpret the constitutionality of its own laws,” consider this additional wrinkle to the Boerne case: The 14th Amendment (which protects people against violations of civil liberties by state governments) says: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” What does it mean to “enforce” the protection of civil liberties, and what on earth does “appropriate legislation” mean? Can Congress be over-protective, if they think that’s the best way of preventing any trampling of religion? As long as Congress is not dipping below some minimum threshold, doesn’t the 14th Amendment give the power to Congress to define religious freedom?
Once again, the Constitution itself provides answers to none of these questions. The Supreme Court — by its own institutional biases — has answered all of these questions with the answers that give the most power to the Supreme Court, but these are certainly not the only possible answers. There are other possible equilibria that we could reach. But for the sake of consistency and the rule of law, this view of extreme judicial supremacy reigns supreme.
The place where our unwritten Constitution operates constantly and mostly unseen is in the very structure of the federal government, and the separation of powers between the three branches of government.
The Constitution neatly divides all federal power, like Gaul, into three parts: legislative, executive, and judicial. The Legislative branch makes laws, the Executive branch executes the laws, and the Judicial branch resolves conflicts that implicate those laws. Simple enough, right?
Not really. The modern world is a lot more complicated than the world of 1787, and “executing” the laws is a massive, technocratic endeavor. It is impossible to address all of the intricate regulatory details of federal law in the legislation passed by Congress, so Congress has delegated to “executive” agencies the power to expand on those laws through the quasi-legislative rule-making process, and to interpret those laws through quasi-judicial processes.
The “executive” branch has become a massive world of legislative, executive, and judicial activities, spanning everything from traditional “political” activities to a massive bank that keeps the world economy on track.
This is a state of affairs not at all envisioned in the written Constitution. But that’s fine. The Constitution really says nothing about how the government should operate on a day-to-day basis, and it is completely silent on what distinguishes “legislative” activities from “executive” ones.
The Constitution provides a strong skeleton, but the only reason it has lasted as long as it has is that we allow Congress and presidents great leeway adding flesh to the bones.
With this all in mind, let’s return to the situation of the Special Counsel. If Congress passed a law protecting Mueller from firing (over the president’s inevitable veto), would it be constitutional?
The short version is, yes. The Supreme Court has effectively ruled on this issue before. But that was 1988, which was an entirely different era in the realm of constitutional law. The Court made its ruling over the vociferous objection of Justice Scalia, and Scalia’s views on this matter have become more and more mainstream within the Republican Party.
In answering questions about the president’s power to control executive branch officials, the Supreme Court has focused on three key clauses, which really contain the sum total of what the Constitution says on the subject:
- “The executive Power shall be vested in a President of the United States of America.”
- “[The President] shall take Care that the Laws be faithfully executed.”
- “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Officers of the United States…: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
First, what does the Constitution say about Congress’s ability to protect an Officer from being fired by the President? Absolutely nothing. The Supreme Court’s jurisprudence on this subject is made up out of whole cloth.
But if we try to reason our way to an answer, we only get to further questions: How do we distinguish between an “Officer” and an “inferior Officer”? What does “the executive Power” consist of? What does it mean to “vest” that power in a single individual? Does the “take Care” clause prevent Congress from giving anyone else any responsibility to take care that the laws are faithfully executed?
Yes, there are some issues that have been semi-resolved by Supreme Court precedent. Senate-confirmable officials serve at the pleasure of the President, but Congress may require that “inferior officers” can only be fired for cause. Well, kind of. Independent administrative officials, who “cannot in any proper sense be characterized as an arm or an eye of the executive” are also protected from firing. And even quintessentially executive officials like prosecutors can be protected as well, as long their powers are specific and limited.
But if Congress passes a law to protect Mueller and somehow enacts it over Trump’s inevitable veto, we will hear a lot about the constitutionality of that law, and whether it violates the idea of a “unitary executive.” The “unitary executive” is the right-wing view that everything that is formally within the “executive branch” is within the full and direct control of the president, and the president alone. If you work in the executive branch, the President can tell you what to do — and fire you if you don’t do it. In this view, the idea of an independent prosecutor doesn’t make any sense; the Special Counsel’s office is part of the executive branch, and therefore the office by definition cannot be “independent.” (While the Supreme Court has never taken such an extreme position, Clarence Thomas has certainly hinted in that direction, as has Brett Kavanaugh, and I wouldn’t expect much restraint from a former executive branch official like John Roberts.)
On its own, the unitary executive view makes some intuitive textual sense: The Constitution divides power into three branches of government, and therefore the President — who heads one of those branches — must be able to run his branch without interference from the other branches, right?
But viewed in a historical context, that’s crazy. The president is — very consciously and deliberately — not a king, and complete insulation from Congressional interference gives him king-like immunity. Why shouldn’t the elected representatives of the people have the ability to put of guardrails on the power of the presidency?
And what will be important to realize through all of this is that the Constitution is absolutely silent on these matters. The “unitary executive” theory is no more “correct” than a view that gives Congress extensive authority to limit the president, which is no more “correct” than the middle ground that the Supreme Court has staked out in the 20th and 21st Century.
The Constitution, by its nature, is a skeleton of law, not the whole body. It says much less than people think, but the system works because people agree and accept certain traditions and norms about how the Constitution is interpreted and what it means.
But, as Thomas Jefferson (self-servingly!) said when he authorized the constitutionally dubious Louisiana Purchase: “To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” Or, as Justice Robert Jackson more colorfully put it in one of his dissents, the Constitution should not be a “suicide pact.”
I suspect that in the next few months, we will hear a lot from the White House about the powers of the executive, and we may even see the Supreme Court weigh in on some of these issues. And as our institutions are inevitably tested, we should not forget that no outcome is dictated by the Constitution. The Constitution works for us, not the other way around. When it comes to the survival of our Republic, neither Donald Trump, nor John Roberts, nor any other individual person gets the final say on what the Constitution means. We — the People — decide what our Constitution means, and in the months ahead it will be our job as citizens to say so.
