Administration of War

By Yoo, John C. | Duke Law Journal, May 2009 | Go to article overview
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Administration of War


Yoo, John C., Duke Law Journal


INTRODUCTION

"Of all the cares or concerns of government," Alexander Hamilton wrote, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." (1) "The direction of war implies the direction of the common strength," he continued in Federalist 74, "and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority." (2) To avoid the "mischiefs" and "dissensions" that would arise from multiple commanders, the Framers vested the power to conduct war, the Commander-in-Chief power, in a single president?

This decision, over which there was little dissent in the Philadelphia or state ratifying conventions, (4) might lead one to think that the president would exercise greater control over the military than over any other part of the executive branch. We do not commonly think of the armed forces of the United States as an agency, in part because it does not fall within the Administrative Procedure Act's basic provisions. Nonetheless, the military is part of the permanent government, as are the other agencies, and indeed is the most important and the oldest--the army and navy were created to protect the nation's security during the Revolutionary War, predating the Constitution itself.

Academic and judicial debates over the chief executive's direction of the administrative state have centered over whether Article II's grant of "the Executive Power" included the authority to remove all subordinate officers of the United States: Presidents have long argued that their executive power includes the power to remove inferior officers without the permission of Congress, thereby giving them the authority to direct the operations of the executive branch. Critics respond that Congress's constitutional authority to create administrative agencies in the first place should give it the ability to condition the removal of their officers. Article II contains no discussion of removal; it only describes the Senate's joint "advice and consent" role in the appointment of principal officers and Congress's role in the creation of inferior offices. (6) The Constitution could be read to require the same process for the removal of officers as for their appointment.

The judiciary has not fully accepted either argument. In Morrison v. Olson, (7) the Supreme Court recognized that "there are some 'purely executive' officials who must be removable by the President at will if he is to be able to accomplish his constitutional role." (8) Nonetheless, it also allowed Congress to make officers removable only "for cause" if the need for independence from presidential control is great enough and does not interfere with the executive's constitutional functions. (9) Thus, the Court upheld the independent counsel's protections from presidential removal because its independence was necessary to secure the impartial investigation of the president and his advisers, while, according to the Court, the president and the attorney general still retained some ability to direct its activities. (10)

At issue in these debates are more than simply personnel issues such as firing underperforming employees. Power over removal is a proxy for control over the administrative state. According to proponents of a broad reading of Article II, a president must have the unrestricted authority to fire an officer to ensure that all subordinates in the executive branch obey his commands." Otherwise, the president cannot ensure a uniform interpretation and enforcement of the Constitution and other federal laws, as required by Article II's Take Care Clause. Defenders of congressional prerogatives claim that the power of administration goes unmentioned in Article II, and so the legislature can create and regulate it. (12) Expanded congressional control is also necessary, according to some accounts, to balance the vast growth of presidential power during and since the New Deal revolution.

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