The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When the Founders agreed that "[t]he executive Power shall be vested in a President of the United States of America," the core phrase had a single, simple, and uncontested meaning. The executive power meant the power to execute the laws. Period.
For the uninitiated, this conclusion may seem obvious on its face. Yet Gary Lawson has rightly called it "one of the most important questions of any kind, on any subject, under the Federal Constitution." And originalists are currently getting the answer wrong.
Let's start with some background. Basically, the Executive Power Clause has three competing interpretations.
- The cross-reference thesis. On this view, the clause has no standalone content. It simply refers to the more specific powers listed later in Article II.
- The law execution thesis. On this understanding, the clause grants exactly what its grammar suggests: the power to execute the laws.
- The royal residuum thesis. This view reads the clause to include all of the powers typically held by an eighteenth-century executive—particularly those relating to foreign affairs and national security—unless specifically revised or reallocated elsewhere in the Constitution.
The royal residuum thesis has enormous consequences. In its least aggressive form, it reads the Executive Power Clause as conveying a defeasible authorization to do what's necessary in the realm of foreign affairs and national security, except where either the Constitution or some specific statute forbids it. In its most aggressive form, the residuum thesis reads that authority as indefeasible. In other words, if some power was inherent to the eighteenth-century British Crown, nothing short of pretty clear constitutional text can stop the President from doing it. Both versions of the residuum thesis yield a strong interpretive presumption in favor of presidential power wherever either the Constitution or any given statute is ambiguous.
This is no academic exercise. To the contrary, the argument has been repeatedly deployed in official contexts. Take the OLC memo advising George W. Bush's Defense Department that the President was legally entitled to order the torture of suspected terrorists. The Executive Power Clause was front and center in explaining why "any power traditionally understood as pertaining to the executive—which includes the conduct of warfare and the defense of the nation—unless expressly assigned to Congress, is vested in the President." This meant, the memo concluded, that statutory prohibitions on torture would be unconstitutional as applied to any national security interrogation deemed necessary by the President.
The interrogation memo has been repudiated, but its argument has proved resilient. The Obama Justice Department, for example, advised the President that his "unique responsibility, as Commander in Chief and Chief Executive, for foreign and military affairs as well as national security" supported his affirmative authority to use force in Libya without congressional approval. And in Zivotofsky v. Kerry, Justice Thomas argued that the Executive Power Clause justified presidential defiance of a statutory requirement that a young boy's passport list his place of birth as Israel.
Not all of these conclusions rested solely on the original understanding of the Executive Power Clause. Many lawyers, scholars, and public officials are perfectly happy to deploy other interpretive resources in deciding questions like these. Among originalists, however, the residuum thesis is dominant. And nonoriginalists generally understand that, even if constitutional meaning evolves, you have to start somewhere. So it's critical to get the history right.
As a historical matter, the royal residuum thesis is incorrect. I'm in the midst of writing a series of articles that explain why. My posts this week will draw on the first piece, which lays the foundation for the broader project by exploring the evidence from what I like to call Madison's bookshelf: dictionaries, legal treatises, works of political theory, and the published records of official government decisionmaking. This mass of material shows that late eighteenth century readers understood "the executive power" to have a simple, straightforward, and unambiguous meaning: the power to execute the laws.
It's wonderful to have the chance to engage Volokh Conspiracy readers on this research. I'll be most interested to hear your thoughts. Many thanks to Eugene for his generous invitation to join the conversation here—and to you for reading!
[For all the posts in this series, click here.]