One of the strongest arguments against the unitary executive interpretation of the Constitution is based on the Opinions Clause.  If the President has constitutional authority to direct executive branch officials, why was a clause that authorized him to “require the Opinion, in writing, of the principal Officer in each of the executive Departments” needed?  After all, even without the Opinions Clause, the President could simply direct a principal officer to provide him with a written opinion.  Under the unitary executive view, then, the Opinions Clause appears to be redundant.  

While defenders of the unitary executive have contended that the Clause is not redundant, many commentators are unconvinced.  In fact, some originalists, such as Caleb Nelson, have become persuaded, in part based on the Clause, that the unitary executive view is mistaken. 

But the Opinions Clause can be reconciled with the unitary executive.  The Clause is not redundant because it serves two significant purposes: it answers a question that readers at the time of the Constitution’s enactment would have asked, and it renders unconstitutional a statute that might otherwise have been constitutional and might have been passed.

Executive Councils

To understand these functions of the Opinions Clause, one must go back to the period prior to the Constitution when executives were structured differently.  Americans at that time generally sought a republican executive – one which did not have monarchical authority and was under the law.  One of the principal means that Americans used to check executives – which had long been championed by opponents of excessive executive authority – was executive councils. 

When the Constitution was enacted, virtually all of the states employed councils of one type or another to limit their executives.  The role of these councils varied in different circumstances.  Some constitutional provisions required the governor to secure the consent of the council, while others allowed him to choose to request the advice of the council, and still others required that he seek its nonbinding advice. 

This last type of provision, which existed in many states, is noteworthy.  Under this type of council, which I call a mandatory advice council, the governor was sometimes required to seek the advice of his council but appeared not to be obligated to follow it.  These constitutions often required that the advice be recorded and then made available to the legislature upon request.

A common arrangement mixed different types of councils.  Some provisions of the constitution would authorize the governor to take an action only with the “advice and consent” of the council.  Other provisions of the same constitution would allow the governor to take an action with the “advice” of the council.  Thus, these constitutions combined a consent council for certain actions with a mandatory advice council for other actions.[1]

One of the biggest changes that the Constitution made to prior law was to abandon executive councils.  To people who feared excessive executive power, this change was disturbing.  Leading Anti-Federalists, such as George Mason, Brutus, Cato, and Richard Henry Lee, all cited the lack of an executive council as a reason for opposing the Constitution.     

Unsurprisingly, the issue of an executive council arose at the Philadelphia Convention.  Several proposals to create a council of state or a privy council were offered.  Some of the proposed councils would have provided advice to the President but would not have required that he follow it, whereas others might have required that he secure the consent of the council.

But each of the proposals was rejected.  Instead, the Convention took language from part of one of the executive council proposals – “he may require the written opinions of any one or more members” of the council – as a model for the Opinions Clause. 

The Opinions Clause Answers Questions that Would Naturally Arise for Readers at the Time

While it is significant that the Opinions Clause grew out of proposals for an executive council, the key question is what functions the Opinions Clause served. 

There are two functions that can be identified for the Opinions Clause – both relating to executive councils.  First, if the Constitution had omitted the Opinions Clause, the obvious question that would have arisen for people deciding whether to support the Constitution is, given the absence of an executive council, how would the President secure the advice that executives previously received and how would these advisors be made accountable? 

The Opinions Clause answered those questions by making clear that the President could seek the advice in writing of the principal officers.  Thus, the President would receive advice, and that advice would be in writing and therefore on record. 

Since these written opinions (as a substitute for executive councils) were a new method for receiving advice, readers of the Constitution would not necessarily have anticipated it.  It is true that this function of the Opinions Clause would not provide additional presidential authority.  But that is not the only way that a clause serves a function.  It can also provide useful information that people would not have immediately recognized. 

The Opinions Clause Bars Statutes that Impose Mandatory Advisory Councils 

But even if one insists that a provision have a legal effect to avoid redundancy, the Opinions Clause satisfies that criterion.  While the advocates of executive councils lost at the Philadelphia Convention, that does not mean the threat of such councils was permanently eliminated.  Instead, the popularity of such councils might have led Congress to pass a statute requiring mandatory advisory councils.[2]  In particular, Congress might pass a law mandating that the President consult with a council consisting of the principal officers of the executive departments before taking certain actions.  The advice provided by the officers would be recorded and kept on record.  While such consultations would not bind the President, they would nonetheless create a written record of the advice he received.

Under a unitary executive interpretation, this statute might be constitutional, especially in certain circumstances.  Since the President would make the ultimate decisions, it would appear to be consistent with the key feature of the unitary executive.  Requiring the President to be advised by executive officials might then seem to be within Congress’s necessary and proper authority.

One might question whether Congress has the authority to regulate the process by which the President exercises what has been called his “conclusive and preclusive” authority, such as the pardon power.  If one accepts the view that the exercise of such authority cannot be regulated – and putting aside questions about the scope of such authority – then a law requiring the President to seek advice in these areas would be unconstitutional.  But that would still leave many areas, including decisions enforcing most statutes, to be subject to regulation.

The decision to require that the advice be recorded and maintained would also appear to be constitutional.  The requirement that the advice be recorded does regulate the manner in which the President interacts with his advisers, but since it leaves him in control of the final decision and does not even require that his decision be recorded, it would seem consistent with the vesting of executive power in the President.    

The requirement in some of the state constitutions that the recorded advice be made available to the legislature is more questionable.  Whether such information can be made available to the legislature upon demand turns on Congress’s investigative powers and executive privilege.  There are serious questions about both executive privilege and Congress’s investigative powers under the original meaning.  But, at the least, the House of Representatives would have a strong argument that it is entitled to access such documents in a genuine impeachment inquiry.  And even if this required access to the advice were somehow eliminated, the Opinions Clause would still have a function against the remainder of the statute.

Thus, a law establishing a mandatory advisory council would appear to be constitutional in certain circumstances and at the very least would be plausibly constitutional, so that it would have to be taken seriously by the constitutional enactors.  Here is where the Opinions Clause becomes relevant.  The Opinions Clause would prohibit a statute establishing a mandatory advisory council.  The Clause states that 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.” 

While the most obvious import of the Clause is either to authorize the President to take such actions or to acknowledge his power to do so, the Clause also indicates that Congress may not require the President to request a written opinion from a principal officer.  After all, the Clause states that the President “may” require the opinion in writing, which suggests that the President has the discretion to decide whether or not to require an opinion.  This understanding reasonably extends to a law that records in writing the advice that an officer provides to the President as well. 

Moreover, even if one thought this provision was ambiguous – as either conferring discretion or merely authorizing the President to request an opinion – history and purpose would argue for the conferring-discretion reading.  After all, if the provision was intended as a replacement for executive councils, including mandatory advisory councils, then this suggests that it should be read to preclude laws that mandate that the President seek written advice. 

This interpretation of the Opinions Clause would probably extend only to councils that require advice to be recorded in writing.  Would a statute that did not require advice to be recorded be constitutional?  Perhaps, but such a statute would be less likely to be enacted and would interfere less with the President’s authority.  Since there is no written record of the advice, Congress would have less reason to require the advice to be given since it could with confidence neither hold the advisers responsible for their advice nor the President responsible for failing to follow that advice.  For the same reason, such a statute would intrude less on the President’s powers.  In any event, the Opinions Clause still has an important function if it protects against one statute, even if it does not protect against a different statute.

Conclusion

Although many commentators have assumed that the Opinions Clause represents a problematic redundancy for the unitary executive view, that is not true.  The Clause serves two important functions.  It answers questions that would have arisen during the ratification process and prohibits Congress from requiring a mandatory advisory council.  These functions are more than important enough to justify including the Opinions Clause in the Constitution.  Thus, there is no Opinions Clause redundancy that argues against the unitary executive.

Michael B. Rappaport is the Hugh and Hazel Darling Foundation Professor at the University of San Diego School of Law.

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[1] See Massachusetts Constitution of 1780 (combining mandatory advice council with consent council); New Hampshire Constitution of 1784 (same); Delaware Constitution of 1776 (same); Maryland Constitution of 1776 (same).  This interpretation of the different types of councils derives primarily from the state constitutional language.  It is hard otherwise to explain the differences in the wording of these provisions.

[2] Statutes that required governors to employ a council on additional specified matters were contemplated under these state constitutions.  See South Carolina Constitution of 1778 (“The privy council is to advise the governor and commander-in-chief when required, but he shall not be bound to consult them unless directed by law.”).