c. Article II Vesting Clause
Also, the Vesting Clause’s “grant of executive power to the President,”95
along with the duty to “take Care that the Laws be faithfully executed,”96
suggests that executive branch actors must appoint executive branch
adjudicators.97 Whether one adheres to a “unitary executive” interpretation
of the Article II structure98 or believes the Executive has a more general “duty
to supervise,”99 the Chief Executive necessarily has some measure of
responsibility and accountability for the authority exercised by executive
actors.100 The President’s ability to make good on this “take Care” duty likely
hinges in no small part on his ability to direct, at least on some level, decisions
made by executive actors—even by adjudicators.101
That does not mean that a President should be permitted to order
adjudicators to make crass judgments biased unfairly toward the government
or arbitrarily apply the law against parties.102 Ever. By any means. All
executive actors must uphold the Constitution,103 which most fundamentally
preserves and defends “Justice” and “Liberty.”104 But at bottom,
accountability for the proper use of federal power by agency adjudicators
95. See Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional
Interpretation, 81 IOWA L. REV. 1267, 1281 (1996) (describing the Article II Vesting Clause).
96. U.S. CONST. art. II, § 3; see also Lawson & Moore, supra note 95, at 1280 (describing
the “take Care” “duty”).
97. Cf. Barnett, supra note 9, at 815 (suggesting that the President must have oversight
of executive branch actors because of his “take Care” duty). But see Amar, supra note 24, at
802–04 (characterizing Justice Scalia’s position in Morrison as the view that “the Vesting
Clause command” is satisfied “as long as the President retains the basic power to remove an
executive officer at will, or otherwise countermand that officer’s orders”).
98. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution:
Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1165–68 (1992); Lawson, Rise
and Rise, supra note 19, at 1242.
99. See Gillian E. Metzger, The Constitutional Duty to Supervise, 124 YALE L.J. 1836,
100. Cf. Amar, supra note 24, at 805 (contending that the Appointments Clause’s use of
the word “inferior” means “[t]he superior appointing authority must have broad power to direct
or to countermand the decisions of the subordinate”).
101. See Lawson, Rise and Rise, supra note 19, at 1242–43 (explaining that “the Article
II Vesting Clause seems to require that [agency officials’] discretionary authority be subject
to the President’s control”).
102. See infra notes 221–31 (describing the First Federal Congress’s statutory efforts to
ensure legality and impartiality in executive action); see also Lawson, Take the Fifth, supra
note 19, at 24–25, n.90 (explaining that statutory procedures or executive discretion typically
are the only appropriate source of constraints on “non-rights-depriving” actions but “extreme
cases” may also implicate constitutional fiduciary principles: “Executive agents, as with all
federal governmental actors, have a fiduciary duty of care, and that duty limits the extent to
which wholly arbitrary or inappropriate procedures can be employed in any tasks.”).
103. U.S. CONST. art. VI, cl. 3.