The President...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....
The Opinion Clause arose out of the debates at the Constitutional Convention regarding whether the president would exercise executive authority singly or in concert with other officials or privy councilors. A brief review of English custom illuminates the choices made by the Framers. Formally, parliamentary “ministers” were ministers to the king. In addition, all British citizens were “subjects” of the king, and the king could require any nobleman, judge, or member of Parliament to serve in his privy council and provide him with personal or official advice. By the end of the eighteenth century, however, the ministerial offices had assumed such practical and administrative power that it diminished the king’s responsibility for actions taken by the government. The king was increasingly expected to defer to his ministers’ decisions. The state of the English executive at the time of the framing was this: legally, the king could do no wrong; politically, the king was responsible for no administrative wrong.
At various stages during the convention, the Framers rejected proposals to divide or condition executive power. Their intent from contemporary records is clear: they wanted “[e]nergy in the executive,” as Alexander Hamilton put it in The Federalist No. 70; and they wanted to maximize presidential responsibility for executive decisions. Some of the Framers, including James Madison, desired a single executive but supported a Council of Revision—composed of the president and judges—to exercise the veto power. Rufus King explained why the proposal was rejected: “If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary [i.e., the veto] as to the Executive power.” Yet vesting all executive power in one person was enough of a break with English tradition to cause unease. Several delegates supported a constitutional “Privy Council” or “Council of State,” which could not bind the president but would provide him with advice.
One argument advanced against a privy council was that the department head most responsible for the matter that had been put to the council might evade his special share of responsibility for the decision. The Opinion Clause was born of this concern. The original version assumed the president would have a privy council but that he could “require the written opinions of any one or more of the [relevant] members [of the council] . . . [and] every officer above-mentioned shall be responsible for his opinion on the affairs relating to his particular Department.” But the Framers rejected even a weak advisory council. Charles Pinckney concluded that: “The President shd. be authorized to call for advice or not as he might chuse. Give him an able Council and it will thwart him; a weak one and he will shelter himself under their sanction.” Later, a committee headed by Gouverneur Morris was told to consider the matter further. The commit-tee also rejected the idea. Morris explained: “The Presidt. by persuading his Council to concur in his wrong measures, would acquire their protection for them.”
Instead, Morris proposed language that formed the basis of the current Opinion Clause, merely authorizing the president “to call for the opinions of the Heads of Departments, in writing.” To distinguish this proposal even further from that of a collegial council, the clause was later revised to specify that written opinions could be obtained “upon any Subject relating to the Duties of their respective Offices.” Thus modified, the clause does not encourage the president to seek a consensus from all department heads on any matter.
The resulting Opinion Clause prompted Alexander Hamilton to opine in The Federalist No. 74 that the clause added nothing to the president’s executive power: “This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.” Some scholars think, however, that the Opinion Clause is not redundant, but rather an example of an enumerated executive power demonstrating that the president does not possess unenumerated powers through the Executive Vesting Clause (Article II, Section 1, Clause 1). Others assert that that the president’s power in the Opinion Clause is limited to purely “executive departments” such as the early Departments of Foreign Affairs and War, and not to other congressionally created departments, such as Treasury, nor to so-called “independent” agencies. Although there is some evidence from congressional practice supporting the latter two interpretations, they conflict with drafting history that strongly reinforces the notion of a unitary executive, for there is more meaning in what the Framers rejected (i.e., limitations on the executive) than in what they settled on in the end.
The final version of the Opinion Clause adopted by the Convention, and confirmed through constitutional practice, reinforces the authority and accountability of an executive who is bound by law. The Framers’ rejection of a formal cabinet independent of the president prevents department heads from exercising an independent sphere of influence over policy and denies them a forum in which to enlist others in debates over the president’s policies. Instead, it was made explicit that the president possessed the typical management authority to require even department heads to prepare written reports for him on the performance of their official duties. In addition, the Opinion Clause contains a negative inference concerning a principal officer’s independence, reinforced by the Recommendations Clause of Article II, Section 3, which allows the president to recommend to Congress such measures “as he shall judge necessary and expedient.” The two clauses reflect the Constitution’s separation of powers structure by preventing Congress from requiring presidential appointees to report directly to Congress rather than to the president. As Chief Justice John Marshall noted in Marbury v. Madison (1803), “[t]o aid [the president] in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.” Congress can require reports from the respective departments, but Congress cannot interfere with prior presidential review of those reports and presidential control over what is transmit-ted to Congress.
As a result of the debates over the Opinion Clause and a privy council, the Constitution nowhere requires a formal cabinet. President George Washington found it prudent to organize his principal officers into a cabinet, and it has been part of the executive branch structure ever since. Nevertheless, no “prime minister” deflects the political accountability of the president. Presidents have used cabinet meetings of selected principal officers but to widely differing extents and for different purposes. Secretary of State William H. Seward and then-Professor Woodrow Wilson advocated use of a parliamentary-style cabinet government. But President Abraham Lincoln rebuffed Seward, and Woodrow Wilson would have none of it in his administration. Several twentieth-century presidents made pledges to use their “cabinets” as deliberative bodies, but Eisenhower was one of the few who did so.
Recent cabinets have grown unwieldy for effective deliberations, with up to twenty-five members including key White House staff, in addition to department and agency heads. President Ronald Reagan formed seven sub-cabinet councils to review many policy issues, and subsequent presidents have followed that practice. But most recent presidents have met infrequently with their entire cabinets. In an age when the president relies heavily on White House staff for immediate advice and assistance, presidents often use cabinet meetings to make the cabinet members feel more a part of the president’s inner circle or to increase their loyalty to the administration.
A cabinet that has no constitutional blessing may actually make it a more valuable tool than one constrained by constitutional design. There is more flexibility in the president’s choice of which officers and councilors should be included. More-over, a cabinet that meets at the pleasure of the president will naturally be more mindful to serve his interests rather than their own or those of their departments. Thus, the Framers increased the likelihood that the president will obtain useful advice from his principal officers by leaving the advice structure entirely to his discretion.
Akhil R. Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647 (1996)
Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004)
Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992)
Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994)
JAMES P. PFIFFNER, THE MODERN PRESIDENCY (3d ed. 2000)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
United States v. Germaine, 99 U.S. 508 (1879)
Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991)