I continued my research into this pretty fascinating legal topic, which is long overdue to come to a head at the Supreme Court. I failed to mention one aspect of this relevant to the issue in Article 2, Section 2 of the Constitution, describing the process by which the President nominates and appoints, with the advice and consent of the Senate, various officers. The full language is:
“(the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The clear references to officers created by Congress and Congress being able to give the President or other the power to appoint inferior Officers would indicate to me that the intent was for Congress to be the creater of Departments, by laws which the President would have to sign or could veto, and the President would nominate and appoint the heads of those departments, subject to the consent of the Senate.
Before the Constitution the United States was governed by the Articles of Confederacy and we had departments and Secretaries before the adoption of the Constitution, starting with the Department of State, the Department of War, and the Treasury Department, all created before the Constitution was adopted. The office of Attorney General and Postmaster General also were created around this time. These departments and offices were created by very simple acts of Congress.
The Federalist papers, written at the time the Constitution was being adopted, explain the intent of various articles and why the language was written as it was. Nothing explicit about the creation, management and disbanding of departments, but the Federalist papers Nos. 70 to 72 (see also some discussion in No. 84) in discussing the executive again make it clear that Presidential appointments were to offices established by law, that is by Congress. This history and practice, being followed up to this day, and agreed to by Presidents, strongly suggests that Congress has the sole power to create departments of the federal government.
It is interesting to trace, for example, all the laws relating to the Department of State. It started out with a really simple law, a sentence or two. Particularly by the 1900s, especially mid-1900s, Congress began piling on all kinds of offices and officers and requirements for what the Department did and how it did it. This seems to me to be a clear violation of the constitution. It is one thing for Congress to create a Department and for the Senate to have to consent to appointments of the head of a Department. Micromanaging the Departments is intruding on the clear executive power of the President.
I suspect the Court will find that only Congress can create Departments and Officers, as the Constitution means those terms, but once they are created they are part of the executive branch and the President has full power to manage them as he sees fit. And the Congress would likely have to be the branch to disband a department, since the power to create would seem to subsume the power to eliminate. It is unclear to me why the Constitution does not specifically reference department creation, as it does office and officer creation. On the other hand, the Court could, and I believe should, also find that Congress cannot tell the President how to manage or staff the departments once they are created. And one President should not be bound by the actions of his predecessors.
The independent administrative agencies, like the SEC, I will say again could not more clearly be unconstitutional attempts to usurp both the executive and judicial power and to transfer legislative power outside of Congress. We will see if the Supreme Court sees it that way. There are already indications that it does.
