[{"command":"add_css","data":[{"rel":"stylesheet","media":"all","href":"\/sites\/default\/files\/css\/css_veuEhhb1658wti0_ZAig66JOyixENU-N9zhjLQSLfOQ.css?delta=0\u0026language=en\u0026theme=heritage_theme\u0026include=eJwrTi1LzdNPzkksLq7Uy8tPSQUAPMsGtA"}]},{"command":"invoke","selector":null,"method":"openEssay","args":["10000087","\n\n\u003Carticle about=\u0022\/constitution\/articles\/2\/essays\/88\/opinion-clause\u0022 class=\u0022node node--type-constitution-essay node--promoted node--view-mode-embedded clearfix\u0022\u003E\n  \u003Ch1 class=\u0022title\u0022\u003E\u003Cspan\u003EOpinion Clause\u003C\/span\u003E\n\u003C\/h1\u003E\n\n      \u003Cdiv class=\u0022con-location\u0022\u003E\n      Article II, Section 2, Clause 1\n    \u003C\/div\u003E\n    \u003Cdiv class=\u0022con-essay-context\u0022\u003E\n      \n            \u003Cdiv\u003E\u003Cp\u003EThe 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....\u003C\/p\u003E\n\u003C\/div\u003E\n      \n    \u003C\/div\u003E\n      \n  \u003Cdiv class=\u0022con-essay-body\u0022\u003E\n    \n            \u003Cdiv\u003E\u003Cp\u003EThe 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 \u201cministers\u201d were ministers to the king. In addition, all British citizens were \u201csubjects\u201d 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\u2019s responsibility for actions taken by the government. The king was increasingly expected to defer to his ministers\u2019 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.\u003C\/p\u003E\n\n\u003Cp\u003EAt various stages during the convention, the Framers rejected proposals to divide or condition executive power. Their intent from contemporary records is clear: they wanted \u201c[e]nergy in the executive,\u201d as Alexander Hamilton put it in \u003Cem\u003EThe Federalist\u003C\/em\u003E 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\u2014composed of the president and judges\u2014to exercise the veto power. Rufus King explained why the proposal was rejected: \u201cIf 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.\u201d Yet vesting all executive power in one person was enough of a break with English tradition to cause unease. Several delegates supported a constitutional \u201cPrivy Council\u201d or \u201cCouncil of State,\u201d which could not bind the president but would provide him with advice.\u003C\/p\u003E\n\n\u003Cp\u003EOne 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 \u201crequire the written opinions of any one or more of the [relevant] members [of the council]\u2009.\u2009.\u2009.\u2009[and] every officer above-mentioned shall be responsible for his opinion on the affairs relating to his particular Department.\u201d But the Framers rejected even a weak advisory council. Charles Pinckney concluded that: \u201cThe 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.\u201d Later, a committee headed by Gouverneur Morris was told to consider the matter further. The commit-tee also rejected the idea. Morris explained: \u201cThe Presidt. by persuading his Council to concur in his wrong measures, would acquire their protection for them.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EInstead, Morris proposed language that formed the basis of the current Opinion Clause, merely authorizing the president \u201cto call for the opinions of the Heads of Departments, in writing.\u201d 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 \u201cupon any Subject relating to the Duties of their respective Offices.\u201d Thus modified, the clause does not encourage the president to seek a consensus from all department heads on any matter.\u003C\/p\u003E\n\n\u003Cp\u003EThe resulting Opinion Clause prompted Alexander Hamilton to opine in \u003Cem\u003EThe Federalist\u003C\/em\u003E No. 74 that the clause added nothing to the president\u2019s executive power: \u201cThis I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.\u201d 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\u2019s power in the Opinion Clause is limited to purely \u201cexecutive departments\u201d such as the early Departments of Foreign Affairs and War, and not to other congressionally created departments, such as Treasury, nor to so-called \u201cindependent\u201d 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.\u003C\/p\u003E\n\n\u003Cp\u003EThe 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\u2019 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\u2019s 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\u2019s independence, reinforced by the Recommendations Clause of Article II, Section 3, which allows the president to recommend to Congress such measures \u201cas he shall judge necessary and expedient.\u201d The two clauses reflect the Constitution\u2019s 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 \u003Cem\u003EMarbury v. Madison\u003C\/em\u003E (1803), \u201c[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.\u201d 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.\u003C\/p\u003E\n\n\u003Cp\u003EAs 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 \u201cprime minister\u201d 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 \u201ccabinets\u201d as deliberative bodies, but Eisenhower was one of the few who did so.\u003C\/p\u003E\n\n\u003Cp\u003ERecent 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\u2019s inner circle or to increase their loyalty to the administration.\u003C\/p\u003E\n\n\u003Cp\u003EA 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\u2019s 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.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n  \u003C\/div\u003E\n\n      \u003Cdiv class=\u0022con-essay-author\u0022\u003E\n      \u003Cdiv class=\u0022con-essay-author--media\u0022\u003E\n            \u003C\/div\u003E\n      \u003Cdiv class=\u0022con-essay-author--info\u0022\u003E\n              \u003Ch4 class=\u0022con-essay-author--name\u0022\u003E\n                      \u003Ca href=\u0022http:\/\/www.heritage.org\/about\/staff\/g\/todd-gaziano\u0022\u003ETodd Gaziano\u003C\/a\u003E\n                  \u003C\/h4\u003E\n                  \u003Cdiv class=\u0022con-essay-author--job\u0022\u003E\n         Senior Fellow in Constitutional Law, Pacific Legal Foundation\n      \u003C\/div\u003E\n            \u003C\/div\u003E\n    \u003C\/div\u003E\n\n    \u003Cdiv class=\u0022con-essay-tabs\u0022\u003E\n      \u003Cul data-tabs class=\u0022tabs\u0022\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000087-taba\u0022\u003EFurther Reading\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000087-tabb\u0022\u003ECase Law\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000087-tabc\u0022\u003ERelated Essays\u003C\/a\u003E\u003C\/li\u003E\n      \u003C\/ul\u003E\n\n      \u003Cdiv data-tabs-content\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000087-taba\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EAkhil R. Amar, \u003Ci\u003ESome Opinions on the Opinion Clause\u003C\/i\u003E, 82 Va. L. Rev. 647 (1996)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ECurtis A. Bradley \u0026amp; Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ESteven G. Calabresi \u0026amp; Kevin H. Rhodes, \u003Ci\u003EThe Structural Constitution: Unitary Executive, Plural Judiciary\u003C\/i\u003E, 105 Harv. L. Rev. 1153 (1992)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ELawrence Lessig \u0026amp; Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJAMES P. PFIFFNER, THE MODERN PRESIDENCY (3d ed. 2000)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000087-tabb\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMarbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EUnited States v. Germaine, 99 U.S. 508 (1879)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003E\u003Cbr\u003E\nFreytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991)\u003Cbr\u003E\n\u0026nbsp;\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000087-tabc\u0022\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000032\u0022 class=\u0022use-ajax\u0022\u003EPresentment of Resolutions\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000075\u0022 class=\u0022use-ajax\u0022\u003EExecutive Vesting Clause\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000090\u0022 class=\u0022use-ajax\u0022\u003EAppointments Clause\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000100\u0022 class=\u0022use-ajax\u0022\u003EA Note on Administrative Agencies\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000094\u0022 class=\u0022use-ajax\u0022\u003ERecommendations Clause\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000097\u0022 class=\u0022use-ajax\u0022\u003ETake Care Clause\u003C\/a\u003E\n                  \u003C\/div\u003E\n      \u003C\/div\u003E\n    \u003C\/div\u003E\n  \n\u003C\/article\u003E\n"]}]