Question About Dred Scott

Is Dred Scott an originalist decision?

Or is it the product of the "living constitution?"

Is substantive due process even a plausible reading of the Due Process Clause?

The Living Constitution is unrestrained by the Written Constitution. It can give you decisions that are your most cherished dreams, or decisions that are you greatest nightmares.

Whereas the original Written Constitution says what it says and doesn't say what it doesn't say.

Dred Scott and Substantive Due Process

The Court in Dred Scott believed it was taking the issue of slavery out of politics by "constitutionalizing" it. Should the Court use SDP to create new unenumerated liberties in order to remove politically controversial issues from the political process?

Did it work out well in 1857?

If you believe Dred Scott was a wrong decision, what do you think is wrong about it? Is it the Court substituting its political judgment for the political judgment of Congress? Or is it okay for the Court to impose its will so long as its will is based upon good moral principles? Who should decide which code of morality and justice is the correct one?

Was Justice Taney's use of SDP in Dred Scott an example of judicial activism? Why or why not?

Assignments for October 30-November 1

 --Major Questions Doctrine:  Biden v. Nebraska (student loan forgiveness case) (link has been provided)

-- "This wolf comes as a wolf"--Casebook p. 394-415

-- Pre-Civil-War State of Liberty: casebook p. 437-446

Morrison v. Olson (p. 395)

 

In Morrison v. Olson, the law creating an independent counsel to investigate whether certain high-ranking government officials “may have violated any Federal criminal law,” provided that an independent counsel “may be removed from office…only by the personal action odf the Attorney General and only for good cause….” (casebook p. 396).

Does this “good cause” limitation on the removal of an executive officer (the special counsel) whose duties involve matters at the core of executive authority (prosecution of federal crimes) violate separation of powers and the President’s power to remove executive officials?

 

What are your thoughts? Is this case more like the postmaster in Myers? Or more like a commissioner of the Federal Trade Commission as in Humphrey’s Executor?

What does the Court hold?

Page 399:

Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.” . . . There is no requirement of congressional approval of the Attorney General’s removal decision, though the decision is subject to judicial review. . . . In our view, the removal provisions  of the Act make this case more analogous to Humphrey’s Executor v. United States….

 

But now consider Justice Scalia’s famous dissent that starts with typical Scalia vibe:

“Frequently [a separation of powers] issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Casebook p. 401

 

 

Here is how Justice Scalia analyzes the issue (p. 401):

 

 

 

. . . [T]he decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are  answered affirmatively:  (1)  Is  the  conduct  of  a  criminal  prosecution  (and  of  an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising  to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid  the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

. . .

. . . [I]t is ultimately irrelevant how much the statute reduces presidential control. The case is over when the Court acknowledges, as it must, that “[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.” . . .

 

And here is Scalia's criticism of the Court’s ad hoc, balancing approach to separation of powers (p. 403):

 

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration. . . .

. . .

. . . [The Court] extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. . . . ’

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”

In another case, Justice Scalia criticized the Court's use of ad hoc balancing tests by saying it is like trying to decide whether a particular rock is heavier than a particular string is long. This case demonstrates a perfect example of the difference between the "functionalist" and the textualist approaches to constitutional interpretation. According to Scalia, the issue before the Court was not what the Court wished the Constitution said, but rather what does the Constitution say.

The President’s Removal Power: Background

 

The following is based largely upon Chemerinsky’s, Constitutional Law: Principles and Policies 7^th ed:

“[T]here is no provision of the Constitution concerning the president’s authority to remove executive branch officials. The principle that has emerged from the cases is that the president may remove executive officials unless removal is limited by statute. Congress, by statute, may limit removal both if it is an office where independence from the president is desirable, and if the law does not prohibit removal but rather, limits removal to instances where good cause is shown.”

Of course, under Article II “The executive power shall be vested in a President of the United States of America,” and his most important power is to “take care that the laws be faithfully executed.” One important way for the President to "take care" is by exercising control over executive officials.

Myers v. United States

Consider Myers v. United States, 272 U.S. 52 (1926), the first important case to interpret the removal power.

In Myers, President Woodrow Wilson fired Myers, the postmaster of Portland, Oregon notwithstanding a federal law that required postmasters to be removed during their term of office only with the advice and consent of the Senate. The Court held that the law unconstitutionally interfered with the President’s power to remove executive officials. As the Court put it, “[t]he power to remove…is an incident of the power to appoint.” That power of the President is essential to the President’s most important power, the power to take care that the laws be faithfully executed.

 

Humphrey’s Executor v. United States

 

However, now consider a case decided in 1935, Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Here is the executive summary of the case by Oyez:

“President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." Since Humphrey died shortly after being dismissed, his executor sued to recover Humphrey's lost salary. The unanimous Court found that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president.”

And here is Chemerinsky’s explanation: “The practical effect [of the opinion was] to draw a distinction between cabinet officials and those who are in independent regulatory agencies. For the former, such as the postmaster in Myers or the secretary of state or attorney general, Congress may not limit removal because the cabinet is there to carry out the president’s policies. But for independent regulatory agencies—such as the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commission—Congress may limit removal to situations where there is just cause for firing.

From a functional perspective, this distinction makes sense. Congress, in creating independent regulatory agencies, intended that they be relatively insulated from political control. But from a more formalistic perspective, the distinction is troubling. The Constitution creates a single executive and provides no authority for executive agencies that operate outside the president’s control.”

RFD here: True. And what Chemerinsky calls a “formalistic perspective,” I call a perspective that is more faithful to the actual text of the Written Constitution. But I don’t get a vote on the Court.

One last preliminary note--in Bowsher v. Synar, "the Court articulated one clear and important limit on the removal power: Congress cannot give itself the power to remove executive officials. The only exception, of course, is that Congress always can remove an executive official through the impeachment process."