The salt principle and the theory of the unitary executive

The salt principle urges that we read texts of the constitution cum grano salis, which indeed is routinely done by pretty much everybody.

Few would agree the First Amendment ought to be read as ensuring the freedom to shout "Fire!" in a crowded theater, or as prohibiting legally enforceable non-disclosure agreements, or as rendering unenforceable laws punishing revelation of classified information.

No one reads the free exercise clause as guaranteeing a right to religiously practise human sacrifice.

So let us not be absurd and read Article II, Section I, "The executive Power shall be vested in a President of the United States of America," in the manner of the strong theory of the unitary executive expounded by Scalia and others, as excluding the existence of any federal executive agencies, departments, services, or officials that are not subordinate to the authority of the president.

That is, let us not read it so as to exclude the very existence of independent counsel whose job would be to investigate and when appropriate indict and prosecute crimes independently of the authority of the president, counsel who do not report to him and cannot be fired by him and whose work he cannot in any way interfere with.

And let us not read it, as some do in the name of that theory, as affording a unique constitutional shield to the president, disallowing laws, or interpretations of laws, that might result in the president's exercise of his executive authority being criminal, as for example being an abuse of power or being an obstruction of justice, as some seem to have done.

Let us read it with a grain of salt.

Hat tip to Erwin Chemerinsky, We the People, p 133 f.