I've never seen a satisfactory answer to the question of why the Founders included this clause: "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices . . . ."
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I know Article II Section 1 forms the basis of a broad, unitary executive theory, but why did the Founders write in the next section laying out specific powers and responsibilities that they needed to ensure that presidents had the power to demand written advice from their
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cabinet officers? After all, Article II lays out very few specific powers. Why include this one? If it's so clear that the president has full power over the whole executive branch, why include a clause that says
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"the president doesn't have to plead with his cabinet members to get their advice; he can demand that advice." That clause seems much more in line with a cabinet-departments-as-independent-fiefdoms theory of the executive branch.
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You are not alone; there are excellent minds & arguments on the other side of Yoo & Prakash; see, e.g.,
@Marty_Lederman (who wrote this post over at the excellent@just_security - http://bit.ly/2qtUfih ) &@DavidSug's (who tweeted at me earlier on this). -
Thank you for your response. The precedents cited are very interesting. But I still wish there were unitary executive debaters who talked about the written advice clause. (The clause is so obscure, I don't even know that it has a real name). That clause is part of a block quote
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in Myers, but Taft does not talk about it.
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That's an interesting point I haven't seen discussed much; the "written advice" clause shouldn't be treated as surplusage; on the other hand, one shouldn't over-read it. So I share your interest in further commentary on it.
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@realDonaldTrump is fast becoming the most highly scrutinized & thoroughly investigated person in history (by media, law enforcement & political agencies). If, at the end, he’s not charged, or if there’s no evidence of collusion, will that be accepted? I doubt it. -
In light of the thoroughness of the Mueller investigation, I would certainly accept its exoneration of Trump (as to the matters covered by the investigation; DJT faces many other legal issues and controversies, of course).
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Yoo’s interpretation is tortured. Even if his power extends to the special prosecutor, there are limits. The power to terminate does not include the power to obstruct. If the purpose is obstruction, the termination is wrongful.
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My co-author Bruce Green and I disagree with the premise of this op-ed. Take a look at our forthcoming article. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3126856 ….
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Trump doesn't know the meaning of "restraint"
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“So should Mueller”! Great both siderism there!! When has Mueller not exercised prudence; he is polar opposite of Trump. But both sides ...
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