Why is the power to appoint agency heads such a powerful tool for the president?

At the time of the Framing it was assumed that the most powerful branch of government was the legislature. That is one of the reasons why Congress was made bicameral while the executive was unitary—so that legislative power and executive power could be effectively balanced. Today, however, any notion that Congress is twice as powerful as the Presidency would be dismissed as fanciful. The Presidency is the most powerful branch.

Article II, Section 3 has not played a major role in presidential power expansion (although as discussed below, it should be interpreted in light of that expansion). Rather the scope of presidential power has been determined more by how executive power has actually been exercised than by constitutional text. As Justice Jackson observed over 50 years ago in Youngstown Sheet & Tube v. Sawyer (1952), “[t]he Constitution does not disclose the measure of actual controls wielded by the modern presidential office. . . Vast accretions of federal power . .  . have magnified the scope of presidential activity [so that] the centers of real power . . . do not show on the face of the Constitution.”

There are a number of reasons why the President has become so dominant.  First, the Presidency has become the focus of national power and culture, giving the President the unique ability to set the political agenda. In Justice Jackson’s words: “[e]xecutive power has the advantage of concentration in a single head in whose choice a whole nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”

Second, presidential power has expanded because each successive President is able to rely on the actions of their predecessors in justifying their own use of power. In this way, the use of presidential power works as a one-way ratchet with each President building on the actions of those that came before.

Third, presidential power has grown because the size and jurisdiction of the federal government have expanded. The President directs an administrative state that oversees everything from prescription drugs to smoke stack emissions to college sports and from economic development to workplace safety to national parks management. As a result, the President has the ability to make decisions that reach almost every aspect of American life. Further, as head of the federal government, presidents have unparalleled resources to use in advancing their political agenda. This includes access to military and civilian intelligence, the expertise and assistance of countless federal agencies, and the command of the most powerful military in the world. No other branch has such resources at its disposal.

Fourth, presidential power has expanded because of the need for exigent decisionmaking in the modern world. The suddenness with which contemporary events demand government response inevitably invests power in the only branch capable of reacting immediately—the Executive.

Fifth, presidential power has increased because of the changed nature of politics. In the current political environment, those elected to Congress often see their political duty as supporting their party rather than protecting their institutional concerns as legislators. For that reason, many are unwilling or unable to check the President’s power when their party is in the majority. Further, and paradoxically, contemporary politics has served to increase presidential power even when the Presidency and the Congress are controlled by different parties. In those circumstances, Congress has at times so rigidly opposed a President’s agenda that Presidents have been able to claim that their use of unilateral executive power is necessary to overcome Congress’s “obstructionism.”

It is against this recognition of presidential power dominance that specific issues raised by Section 3—and particularly the Take Care Clause—should be analyzed. Given that the Constitution was designed to allow branches to check other branches, one should be cautious in interpreting particular provisions in a manner that would add to the current imbalance.

Some have argued, for example, that the Take Care Clause should be interpreted to prevent the creation of independent agencies because protecting the officers in those agencies from removal at will by the President interferes with the latter’s ability to execute the law as they see fit. But given the scope and breadth of the administrative state, there are often strong reasons for insulating particular agencies from political control in order to foster independent, nonpartisan decisionmaking.  

Concerns with centering too much power in the Presidency also arise in relation to whether Presidents must comply with and defend laws that they believe are unconstitutional. Some contend that the Take Care provision grants Presidents wide discretion to disregard laws that they believe are unconstitutional even when there are substantial arguments to the contrary. Others suggest that Presidents may only refuse to comply with or defend laws when there is absolutely no credible constitutional defense of those provisions. Given that reasoned constitutional interpretation varies so widely, the latter may be the better route. Otherwise, Presidents may be able to end-run the actions of Congress too easily. 

Similar concerns arise with a President’s refusal to enforce laws on policy grounds. Presidents have, and should have, wide-ranging discretion on how to enforce particular laws. As Professor Prakash points out in his essay, enforcing every federal law against every offender would be impossible. Further, there seems to be little doubt that Presidents may take policy considerations into account when setting enforcement priorities. But when Presidents use their enforcement power to essentially invalidate or re-write statutes with which they do not agree, serious questions arise as to whether they are meeting their “take care” obligations. The problem, of course, is determining when a President’s actions are legitimate uses of enforcement discretion and when they are, in effect, illegitimate usurpations of legislative authority. To this point, the courts have not yet come up with an answer to this question. But at some point, they will be forced to.