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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas.
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:: Monday, June 28, 2010 ::
Remarkable that Free Enterprise Fund is a unified opinion from start to finish! I was sure that if any opinion today would be fractured, it would be this one (along with McDonald, which partly was).
The Chief, writing for the Court, even prevented Scalia from writing a jeremiad-concurrence about Humphrey's Executor and its woeful progeny. I would guess he achieved this by merely noting Humphrey's, Morrison, et al, not endorsing them. In fact the opening of the opinion might be paraphrased: We stated the basic rule of the president's removal power in Myers. We announced limits to that power in Humphrey's et al, but today, faced with a new situation, we announce a counter-limit, effectively limiting Humphrey's while declining to revisit it:
The parties do not ask us to reexamine any of these precedents, and we do not do so.
We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States.
We hold that such multilevel protection from removal iscontrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more thanone level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is insteadcommitted to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagreeswith him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.”
:: David M. Wagner 11:39 AM [+] ::