When most people focus on the program of left-liberal constitutionalism, they naturally think of the expansion of unenumerated rights, from the right of abortion to same-sex marriage. But in my view the more important part of their current project is structural—to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.
One example is campaign finance jurisprudence. The press has obvious influence on elections with its ability for agenda setting and framing. And the press is overwhelming left-liberal. One important check on that power is the ability of outside groups to raise money and buy advertising at election time. One might naively believe that these groups had the same free speech rights as the institutional press, but the entire thrust of left-liberal campaign jurisprudence is to provide constitutional protection to legislation that gives different rights to the press and citizens. Accordingly, this jurisprudence would protect a structure where an important left-liberal sector does not have as many competitors to its influence on an essential part of republican government–elections.
Another example is “diversity” jurisprudence.
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 his second term, President Obama has unilaterally pressed his agenda, now that he has lost the congressional support needed to enact his political priorities through legislation. These uses or abuses of executive power include the suspension of deportation and granting of work permits for illegal aliens and various decisions to delay the effective date of certain provisions of Obamacare. As a consequence of the President’s actions, the proper scope of executive authority should figure front and center in the coming presidential campaign.
In conducting this important debate over the nature of our republican order, we must demand that candidates separate out their policy positions from their position on the appropriate scope of executive power. Thus, it is perfectly possible to embrace the policy goals of the President’s executive order on immigration while objecting to its constitutional basis, and vice-versa. Only by forcing candidates to answer the constitutional question can we have any confidence that they will stick to a consistently constitutional view of executive power. After a change in partisan control of the Presidency, partisans in both parties have had a habit of waking up on election morning to find that Article II has acquired a new meaning.
In questioning candidates, it is also important to make a distinction between the unity of the executive and the scope of its power—issues that are often confused.
The next Liberty Law Talk is now available. This podcast is a discussion with Adam White, a lawyer in Washington with Boyden Gray & Associates, about the increasing policy significance of what has been a rather staid or predictable part of federal law-making, independent federal agencies. White argued in an important essay earlier this year in National Affairs that these agencies are increasingly seen by the executive branch as a way to implement or foil significant policies apart from congressional intervention. Perhaps the most striking evidence was the National Labor Relations Board's unprecedented attempt to order the Boeing Corporation to…