Hamilton thought it was superfluous. Federalist 74 says:
> “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.” This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
Note that this provision must be redundant even without a unitary executive. Because otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.
Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils: https://www.yalejreg.com/nc/reconciling-the-unitary-executiv... (“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.’”).
So the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.
> otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.
That's not at all the implication... how do you even reach that conclusion? The obvious implication is that the president can only do what he is legally permitted, which means he could do whatever Congress provides for in law, in addition to what's in the constitution. Because, you know, his job is to execute the law. And Congress and the constitution are the ones establishing the legal framework for agencies.
> This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
It's nice that Hamilton thought that, but what did those who wrote it think? It seems safe to assume they wrote it for a reason, not as fluff. Which brings us to...
> Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils [...] the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.
It's great some modern scholars think this, but this also isn't compelling. If that's what they wanted... they could and should have just said that directly, not left it as a historical puzzle for people to speculate about.
> That's not at all the implication... how do you even reach that conclusion? The obvious implication is that the president can only do what he is legally permitted, which means he could do whatever Congress provides for in law, in addition to what's in the constitution
The constitution doesn’t list any other supervisory powers the president has over officers. So if the Opinions Clause isn’t redundant, Congress needs to spell out all other supervisory authority, down to something as little as asking for opinions.
That reading isn’t just inconsistent with the unitary executive view, it’s inconsistent with every other common view of how the executive works. It would not only mean that Congress can create independent agencies, but that all cabinet officers are independent by default. Nobody seriously thinks that’s true, but that’s the implication of the non-redundant reading of the Opinions Clause.
It’s true that the framers probably didn’t put a redundant power in there just for funsies. But it’s also true that drafters don’t hide elephants in molehills. Article II only mentions executive officers in passing. It would be very odd if the drafters meant to invest them with tremendous independent power only by implication.
> It would not only mean that Congress can create independent agencies, but that all cabinet officers are independent by default. Nobody seriously thinks that’s true, but that’s the implication of the non-redundant reading of the Opinions Clause.
No. "By default"? That's a really weird way to make this sound crazy when it simply isn't. Congress is the branch that creates the departments and creates the legal framework around them in the first place. The president faithfully executes the law. That's not unserious, that's literally the point of the whole system.
A realistic Congress is, generally, not going to pass an act establishing an entire department and somehow neglect to prescribe how the heads are appointed and removed. (!) If it did that for some reason, then yeah, the heads would "by default" be independent, until/unless Congress prescribed otherwise in the future. And... so what? Either that'd be deliberate -- in which case it's equivalent to explicitly prescribing their independence, so it makes no difference unless your real belief is that Congress can't even prescribe this explicitly -- or it would be the result of hundreds of people simultaneously goofing, in which case they can just... fix it by passing another act. Or they deliberately wanted to sow chaos or play games by leaving this unclear, in which case... what else do you expect. In that case it's up to the voters to vote them out, or for courts to rule something if this silly hypothetical ever happens.
All of which is to say: "by default" basically means nothing here. It feels like a pointless argument with an agenda. The idea that the "by default" scenario somehow means some clause was superfluous and deliberately added for funsies is the unserious take here.
> “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.” This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
Note that this provision must be redundant even without a unitary executive. Because otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.
Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils: https://www.yalejreg.com/nc/reconciling-the-unitary-executiv... (“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.’”).
So the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.