The Opinion Clause

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. . . .

—Todd F. Gaziano

Introduction

The Opinion Clause arose from the debates at the Constitutional Convention regarding whether the President would exercise executive authority singly or in concert with other officials or privy councilors. The primary disagreement was over whether the new President should be aided or constrained in important decisions by other officials or whether that would diminish his responsibility and democratic accountability for such decisions. Those who stressed the need for heightened accountability of a single executive prevailed. The resulting Opinion Clause augments the President’s managerial authority even over Senate-confirmed department heads. That choice has enabled Presidents to form advisory cabinets that suit their particular needs and leadership styles.

History Before 1787

In England, the king could secure the assistance of and seek advice from any of his subjects.¹ In modern times, the Prime Minister is an elected parliamentary leader, associated with parliamentary rule. Initially, however, the holders of these positions were ministers to the king. Moreover, during the colonial era, the king could require any nobleman, judge, or Member of Parliament to serve in his Privy Council and request both official and personal advice from that body.²

Over time, the ministerial offices assumed greater practical and administrative power.³ The transformation from royal servants and advisers to largely independent administrative officials was well under way during the reign of King George II. By the end of the eighteenth century, the king exercised fewer powers and thus had less need to seek ministerial guidance; in turn, the king’s responsibility for actions taken by the government was greatly diminished. Thus, the king could do no legal wrong himself and was not politically responsible for his ministers’ administrative wrongs.⁴

Following independence, many states adopted councils. Alexander Hamilton would observe in Federalist No. 70 that “[t]he idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man.” In many states, their executives required the concurrence of the Council.⁵

The Constitutional Convention

During the Constitutional Convention, the delegates debated whether there should be some sort of council to advise the President. James Wilson of Pennsylvania and James Madison of Virginia supported a Council of Revision that could veto legislation.⁶ This Council would be composed of the President and judges. Rufus King of Massachusetts objected to Madison’s proposal. He argued that “the Unity of the Executive was preferred for the sake of responsibility” and that the executive alone should therefore have the veto power.⁷ However, vesting all executive power in one person was a break with English tradition and early state practice. King’s position caused unease and initially failed to win sufficient support from the other delegates.

Several delegates, including Oliver Ellsworth of Connecticut, supported a constitutional “Privy Council.” Such a council would not bind the President but would be obligated to provide him with advice.⁸ Charles Pinckney of South Carolina objected to this proposal because he thought it would lessen presidential accountability.⁹ Elbridge Gerry of Massachusetts also objected. He explained that heads of department would be able to blame the council for an unpopular decision and thus evade personal responsibility regarding matters for which they were responsible.¹⁰

The Opinion Clause was born from this concern. An August 20 proposal would have established a Council of State. Under this proposal, the President could “require the written opinions of any one or more of the [Council’s] members,” each of whom would be assigned a particular portfolio of matters on which to advise. The Chief Justice of the United States would propose changes regarding the “due administration of Justice.” The Secretary of Domestic Affairs would “attend to matters of general police.” The Secretary of Commerce and Finance would “superintend all matters relating to the public finances.” The Secretary of Foreign Affairs would attend to “the Interests of the United States, in their connection with foreign Powers.” The Secretaries of War and Marine would focus on military matters. And the Secretary of State would serve as Secretary of the Council of State. Critically, however, the President would “in all cases exercise his own judgment.” Under the plan, “every officer” was “responsible for his opinion on the affairs relating to his particular Department.” Finally, these officers would be “liable to impeachment & removal from office for neglect of duty, malversation, or corruption.”¹¹

The Convention, however, rejected even a weak advisory council. Pinckney’s earlier warning summarized many delegate’s thinking: “The President [should] 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.”¹²

Toward the end of the Constitutional Convention, a Committee of the States was tasked with further consideration of this and other unresolved matters. On September 7, Gouverneur Morris of Pennsylvania explained that this committee also rejected the idea of a privy or other advisory council: “The Presidt. by persuading his Council to concur in his wrong measures, would acquire their protection for them.”¹³ In other words, the President could evade responsibility by hiding behind his council.

Instead, Morris proposed language that formed the basis of the current Opinion Clause. The text merely authorized the President “to call for the opinions of the Heads of Departments, in writing,” and these written opinions could be obtained “upon any Subject relating to the Duties of their respective Offices.”¹⁴ Thus modified, the clause does not even encourage the President to seek a consensus from all department heads or any particular department head. In the end, the President, and not department heads, will bear the responsibility for his decisions.

The Ratification Debates

In Federalist No. 70, Alexander Hamilton criticized the executive councils in the states, arguing that “multiplication of the Executive is rather dangerous than friendly to liberty.” Instead, he praised the single executive. In Federalist No. 74, Hamilton discussed the Opinion Clause: “This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.” Hamilton was not clear what it meant for a power to “result of itself from the office,” but it seems to suggest that this power was inherent in the office of the presidency. If this was Hamilton’s view, then the Opinion Clause would seem to serve no independent function.

Presidential Practice

As a result of the debates over the Opinion Clause and a privy council, the Constitution nowhere requires a formal Cabinet. Yet President George Washington still found it prudent to organize his principal officers into one.¹⁵ This sort of presidential Cabinet has been part of the executive branch structure ever since, but this does not permit the President to deflect political accountability.

Presidents have used Cabinet meetings of selected principal officers to widely differing extents and for different purposes. For example, during the Civil War, Secretary of State William H. Seward advocated for the use of a parliamentary-style cabinet government. President Abraham Lincoln was viewed as a “political genius” for co-opting Seward and other rivals into a single Cabinet,¹⁶ but Lincoln rebuffed any notion of shared responsibility. After one Cabinet vote, he supposedly said “Seven nays and one aye, and ayes have it.”¹⁷ Several twentieth-century Presidents pledged to use their Cabinets as deliberative bodies, but Dwight Eisenhower was one of the few who did so.¹⁸

In modern times, Cabinets have grown unwieldy for effective deliberations. Some Cabinets have as many as twenty-five members including the Vice President, fifteen department heads, and nine other agency heads. President Ronald Reagan even included in his Cabinet Edwin Meese III, the then-Deputy White House Chief of Staff.¹⁹ President Reagan also formed seven sub-Cabinet councils to work with White House staff on formulating policy.²⁰ That number was later reduced to two. Subsequent Presidents have followed that practice. Most recent Presidents have met infrequently with their entire Cabinets. In an age when the President relies heavily on White House staff for advice and assistance, Presidents often use Cabinet meetings to make the members feel more a part of the President’s inner circle or to increase their loyalty to the Administration.²¹

Open Questions

• Is the Opinion Clause, as Hamilton implied, redundant? Justice Elena Kagan embraced this negative inference in her dissenting opinion in Seila Law LLC v. Consumer Financial Protection Bureau.²² Professor Akhil Reed Amar rejected such a negative inference. He argued that many clauses of the Constitution, including in the Bill of Rights, explicitly affirmed “what otherwise would have been the best reading ‘by unavoidable implication.’”²³ Other scholars have pointed to the Opinion Clause as evidence that the President has enumerated executive powers and not unenumerated, inherent executive powers.²⁴
• What is the relationship between the Opinion Clause and the Recommendations Clause? (See Essay No. 111.) Can Congress require presidential appointees to report to Congress instead of to the President?
• Can a federal court prohibit a department head from providing the President with his opinion? Trump v. New York (2020) reviewed an injunction that barred the Secretary of Commerce from informing the President about census data. The Supreme Court hinted that this injunction “implicat[es] the President’s authority under the Opinions Clause.”²⁵

1. Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647, 647, 654, 656 (1996). ↩︎
2. Id. at 654; Steven Calabresi & Saikrishna Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 634 (1994). ↩︎
3. HM Government, Ministerial Code (Nov. 2024), https://perma.cc/7QX4-SKHN. ↩︎
4. 1 The Works of James Wilson 318–19 (Robert G. McCloskey ed., 1967). ↩︎
5. Calabresi & Prakash, supra at 610 n.278. ↩︎
6. 1 Farrand’s 138–39. ↩︎
7. Id. at 139. ↩︎
8. 2 Farrand’s 328–29. ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. Id. at 335–37. ↩︎
12. Id. at 329. ↩︎
13. Id. at 542. ↩︎
14. Id. at 541. ↩︎
15. James P. Pfiffner, The Modern Presidency 101–02 (6th ed. 2011). ↩︎
16. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln, Part II (2005). ↩︎
17. Pfiffner, supra at 103. ↩︎
18. Id. at 103–04. ↩︎
19. Meese, Edwin, III: Files 1981–1985, Ronald Reagan Presidential Library & Museum, https://perma.cc/7QX4-SKHN. ↩︎
20. Pfiffner, supra at 106–07. ↩︎
21. Id. at 104, 110–14. ↩︎
22. 591 U.S. 197, 266 n.3 (2020) (Kagan, J., dissenting). ↩︎
23. Amar, supra at 648, 648–53. ↩︎
24. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994); Zachary Murray, Note, The Forgotten Unitary Executive Power: The Textualist, Originalist and Functionalist Opinion Clauses, 39 Pace L. Rev. 229, 235–41 (2018). ↩︎
25. Trump v. New York, 592 U.S. 125, 133 (2020). ↩︎