The University of Pennsylvania Law Review’s symposium on executive discretion, held in the fall of 2015 but just published this November, is an important undertaking, but it is remarkable for several silences — for things left unsaid on this important subject — and for questions not asked. First, although the Constitution’s “Take Care” Clause is extensively discussed, the one power Article II gives the President over domestic administration — to require the “Opinion, in writing” of the heads of the agencies Congress has invested with administrative duties — is not. Second, the discussion of the President’s undoubted but possibly constrained authority to remove officials of whose actions he disapproves omits discussion of the difference between the strictly political discretion enjoyed by some officers in some functions, and the law‐constrained discretion enjoyed by others. Third, discussion of the executive branch’s clear advantages in dealing with complex, technological issues of fact, as compared to Congress and the courts, omits discussion of the possibility that the opaqueness of the executive’s internal functioning may prevent understanding of the extent to which electorally driven politics, not technical expertise, controls its actions. And finally, the empirical exploration of the public’s attitude toward possible differences between presidential oversight and presidential control frames its questions in a manner likely to have predetermined its outcome, and in considering the impact on public perceptions does not address the possible impact on administrators’ behavior of their understanding whether the President’s views have only political or (rather) legal bearing on the issues statutes say they are to decide. This Response addresses each topic in turn.
Peter L. Strauss,
Things Left Unsaid, Questions Not Asked,
164 U. Pa. L. Rev. Online 293 (2016); Columbia Public Law Research Paper No. 14-536
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2012