Executive Power

Article II Vests the Executive Power, Not the Royal Prerogative

Against the Imperial Presidency.

|The Volokh Conspiracy |

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.

  1. 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.
  2. The law execution thesis. On this understanding, the clause grants exactly what its grammar suggests: the power to execute the laws.
  3. 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.]

NEXT: The Prohibition President

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I think most American’s would presume that the “The royal residuum thesis.” was correct if you removed the word royal from it. Presidents are given enormous authority and this authority was expanded during the Lincoln presidency and further expanded during the FDR presidency. We live in a post-FDR world.

    1. I should think that the whole point of New Deal-presidential powers is that they are statutory in origin, rather than being based directly on an interpretation of the Constitution.

      1. But the Constitution needed to be interpreted in a manner that allowed those statutes that delegated broad powers to the president to survive constitutional challenge.

      2. Some are authorized by statute (the regulatory state), some aren’t (bank holiday, Japanese internment).

    2. JWatts, the philosophical underpinnings of government can seem pretty academic and irrelevant, until ignoring them delivers a moment so fraught with contradiction it threatens to undo not merely the scheme of government, but the sovereignty upon which the government depends. Neither Lincoln nor FDR went quite so far, but Trump seems already over that line, and headed for the horizon. Review is urgently required.

      1. The examples Prof. Mortensen cites are from the Bush and Obama administrations. Try to keep your TDS under control. So far as I can recall, Trump has mostly relied on Congressional statutes which give him delegated “emergency” powers (to impose tariffs, to construct border walls etc.) in a manner which more resembles FDR than either Bush or Obama.

      2. Are you kidding me? Lincoln launched a war against half the country, and FDR put people into concentration camps. All our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP has done, is Tweeted. God, you snowflakes are such drama queens. “rEvIeW iS uRgEnTlY rEqUiReD.”

        1. Stephen Lathrop has to be literally insane. ” Neither Lincoln nor FDR went quite so far, but Trump seems already over that line” By some accounts, Abraham Lincoln made the Constitution forever irrelevant way back then.

        2. Lincoln launched a war against half the country

          You may want to re-read (or perhaps read?) a history book. Usually it’s the side that starts shooting that is considered to have launched a war.

          1. You ever hear of provocation? Occupation by a foreign army on sovereign soil?

            Were the colonists justified in firing on the Redcoats?

            1. Of course, it was neither a foreign army nor sovereign soil, but even if it were, that would not have made Lincoln the aggressor. Consider Gitmo (which actually does involve a foreign army on another country’s territory); if the Cuban government began shooting at it, and the U.S. responded, that would constitute Cuba starting the resulting war.

          2. Lincoln launched the war by poking the South with a stick. Repeatedly. Just like today’s crybullies.

            1. “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

              “My policy sought only to collect the Revenue, a 40 percent federal sales tax on imports to Southern States under the Morrill Tariff Act of 1861.”

              Honest Abe

            2. The South was itching for a fight, C_G, but don’t let that stop your Lost Cause bullshittery.

            3. “Lincoln launched the war by poking the South with a stick. Repeatedly. Just like today’s crybullies.”

              Huh? South Carolina seceded before Lincoln’s inauguration.

              1. South Carolina only purported to secede, but yes. Chemgeek does not seem to understand the timeline.

      3. Stephen:

        Japanese internment has got to be one of the most extreme assertions of executive power in American history. Few, and maybe none, have gone as far as FDR did.

      4. Suspension of habeas corpus?

        1. Or the Emancipation Proclamation. Imagine (depending on your predilections) either that Obama had declared that all illegal immigrants were citizens, or that Trump declared that all property in sanctuary cities was confiscated. Neither of them has imagined such far-reaching, Lincolnesque measures.

          1. You realize that the Emancipation Proclamation applied to the rebelling states and that slaves within the Union states were freed either by the 13th Amendment or state action, right?

            1. Yes. But the Constitution does not give the president the power to confiscate property, even in cases of rebellion. So Emancipation had to be an adjunct (part of the President’s residual prerogative) to the President’s power as commander-in-chief.

              1. The military sure can confiscate enemy property. And the President can set military policy.

                Plus, you know, they were actually people so maybe using that isn’t quite the legally formalist paradigm to chose.

                1. Well, if we evaluate each issue on the basis of whether the President did the right thing, ultimately, then we will end up restoring the royal prerogative. Fine with me, but totally at odds with the OP.

                  I mean, I’m not aware of any English king who claimed a prerogative to do evil, they all claimed a prerogative to do what was right. Maybe someone has a counterexample, of an English king who said openly that he was determined to prove a villain, and hate the idle pleasures of these days?

    3. Not sure exactly about what to understand from this article. Maybe subsequent posting will provide more clarity. To say that the executive power includes only “the power to power to execute the laws” is anything but straightforward and unambiguous. It actually says almost nothing about how the powers of the president are limited or defined unless a bit more explication is made as to what is meant by “to execute the laws.”

  2. I can’t wait to read this. As a long-time advocate (athwart the tide of history) of what you call the law execution thesis, I await any additional ammunition against the pernicious effects of the residuum hypothesis.

  3. This promises a welcome line of inquiry. I do hope as the argument unfolds everyone can avoid two pitfalls:

    1. Too much privileging Madison, important though he was;

    2. Reverting to backward-looking legalistic analysis, as if any part of the meaning of America’s new-minted sovereignty ought to have remained in thrall to colonial or British precedent and custom.

    I mention both points with an eye to nudging the discussion toward prioritizing historical analysis of what ought to be an analysis more methodically historical than methodically legal.

    (continued)

  4. (continuation from above)

    As an example of difficulty to be found under No. 1, if Madison had a dictionary, most historians would be reluctant to credit that dictionary with interpretive power, in the absence of some citation made in the historical record by Madison to the dictionary. If that citation existed, and further clarified whether Madison accepted the dictionary definition, modified it, or rejected it, so much the better. But the dictionary’s presence on Madison’s bookshelf can’t, as a historical matter, be taken as historical influence for its contents, let alone for the influence of some particular citation. The meat of all these discussions will always be found in recorded remarks made in the historical record, apropos of the subjects about which we inquire.

    (continued)

  5. (continuation from above)

    As an example of difficulty to be found under No. 1, if Madison had a dictionary, most historians would be reluctant to credit that dictionary with interpretive power, in the absence of some citation made in the historical record by Madison to the dictionary. If that citation existed, and further clarified whether Madison accepted the dictionary definition, modified it, or rejected it, so much the better. But the dictionary’s presence on Madison’s bookshelf can’t, as a historical matter, be taken as historical influence for its contents, let alone for the influence of some particular citation. The meat of all these discussions will always be found in recorded remarks made in the historical record, apropos of the subjects about which we inquire.

    (continued)

  6. (continuation)

    Point 2 is akin to Point 1. Legal scholars are only lightly trained in the methods of academic historical scholarship. Legal scholars rely on the training they do have, which concerns the methods of the law. That tendency confronts frustration at the moment of the law’s beginning, because the methods of the law are systematically backward looking, and do not normally encompass a moment of no-precedent?which is what a newly constituted government historically is.

    At such moments, the methods of historical analysis need to take over, or the inquiry risks being led astray by reliance on backward-looking arguments which can’t be shown in the record to have any continuing relevance, post the constitutive moment’s new beginning.

  7. Note, please ignore the repeated post of the first continuation above.

  8. “The executive power meant the power to execute the laws. Period.”

    Use of “Period” as a stand alone word after an assertion is usually a tell that the discussion that follows is complete BS.

    1. In politics, yes. In the Rule of Law, often not.

      1. Legal issues are especially not “one and only one answer” issues.

        The law is our servant, not our ruler.

        1. It’s my ruler because I’m a lawyer. The people who use it as a tool usually wind up stripping the social gears, in my experience.

  9. Interesting. I had associated the “royal residuum thesis” not with originalists, but with executive power enthusiasts like Eric “Executive Unbound” Posner, who look down their noses at originalists for adhering to what Posner considers to be the “antiquated” notion of separation of powers. I also thought that originalists viewed the federal government as a government solely of delegated powers that can do nothing more than what the Constitution assigns to it, and that the States were the actual heirs to the sovereignty of the British crown (except for those powers they voluntarily surrendered and delegated to the federal government). Who are the originalists who are pushing the “royal residuum rule” and what is the basis of their argument?

    1. “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.”

      From the opinion.

      “The President’s longstanding practice of exercising unenumerated foreign affairs powers reflects a constitutional directive that “the President ha[s] primary responsibility?along with the necessary power?to protect the national security and to conduct the Nation’s foreign relations.” Hamdi v. Rumsfeld, 542 U. S. 507, 580 (2004) (Thomas, J., dissenting). Specifically, the Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States.” Art. II, ?1. This Clause is notably different from the Vesting Clause of Article I, which provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, ?1 (emphasis added). By omitting the words “herein granted” in Article II, the Constitution indicates that the “executive Power” vested in the President is not confined to those powers expressly identified in the document. Instead, it includes all powers originally understood as falling within the “executive Power” of the Federal Government.”

  10. Great, exactly what is needed.

    Any objective non-partisan reading of the history of the Constitution and the times illustrate that the Founders wanted a republican government with power vested in the legislative branch and ‘execution’ vested in the executive branch. The three great powers of government, the power to declare war, the power to tax and the power to spend are all constitutionally designated in the Constitution as powers of the Congress. The Revolution was a war of independence against King George III, not against Parliament. Had the colonists been granted representation in Parliament, independence would not have happened.

    For inexplicable reasons the Congress has ceded much of its authority to the Executive. That so-called conservatives or originalists on the Court have not stopped this is one of the great legal tragedies of the 20th and and 21 centuries.

    1. You forget, sir, that the conservatives/originalists were beaten into submission by FDR’s threatened court-packing plan, were outnumbered by the Progressives who ultimately became the majority in the courts and in legal academia by a wide margin, continued to be cowered by claims of “Lochnerism” (the judicial equivalent of accusing someone of racism), and are now confronted by precedent that has rendered the delegation doctrine all but a nullity.

      The irony is that for conservatives like Roberts, their very conservatism compels them to defer to precedent and makes it more difficult to reverse the tide of Congress ceding authority to the President.

    2. “Any objective non-partisan reading”

      My opinion is correct, yours is wrong!

    3. Had the colonists been granted representation in Parliament, independence would not have happened.

      Delegates to the Stamp Act Congress of 1765 in New York rejected the idea of representation in Parliament, insisting instead that Britain refrain from taxing them.

      The taxation and trade restrictions and Intolerable Acts were acts, as in acts of Parliament. The King’s main contribution to an escalating situation was in fact a failure to de-escalate, in that he ignored the colonists’ petitions to intercede.

  11. Why don’t we start from the assumption that EVERY president is going to use executive powers and executive orders to the maximum extent that the courts will allow them to? Few, Presidents, if any, are going to voluntarily refrain from using (what they see as) legal tools available to them.

    It’s also ironic that in general, Reason.com has been skeptical of executive orders except when it came to DACA, one of the most sweeping of all.

    1. “Few, Presidents, if any, are going to voluntarily refrain from using (what they see as) legal tools available to them.”

      I would suggest that President Taft did exactly that during his presidency.

    2. That is an interesting point. Even Saturday Night live made fun of DACA, as executive overreach, with the I’m Just a Bill parody. The more power we give a branch of government, the more it will use, and will not readily give up. Partisans are happy to push the limits with a chief executive to give what they want, not realizing that they are undermining the entire system. And when their opposite number arrives, as it always does in our system, they head slap and say DOH!

  12. I know that your focus is on attacking 3, but I am curious whether 1 vs 2 is a distinction without a difference, since Article II (further on) already requires the President to take care that the laws are faithfully executed.
    What concrete consequences would differ between interpretations 1 and 2?

  13. So the president can’t cure scrofula by touching a sufferer?

    Over the years, I’ve always been puzzled by people who decried the “imperial presidency” but thought the federal government generally should have even more power than it already does. If the executive is too powerful, it would seem to me that’s a sign the government is too powerful.

  14. In the USA, the Executive also has the power of Command in Chief of the armed forces.

    While the Executive Branch does not have constitutional authority to pass legislation, it can issue rules for Executive Branch employees and controls military strategy and waging of war.

    The key is that all 3 Branches of Government have overlapping responsibilities and powers over the few enumerated powers of the federal government.

    For example, the President is the Commander-in-Chief but Congress controls the purse and has the power to raise and support armies and to provide and maintain a navy.

  15. Great topic and interesting post. Looking forward to the rest.

    The best and only way to police the contours of the executive power, whatever that may be, is to make sure that it is indeed vested in the President — i.e. the unitary executive. Our bloated administrative state currently runs the federal government with only minimal interference from democratically elected representatives including the President. The Gordian knot that is this greatest of unconstitutional offenses needs to be cut if there is any hope of reclaiming some semblance of the original understanding of our structure of government. So it seems the two technically separate issues are inextricably linked, and the remedy is political: (a) if the pressure is high enough, Congress can reclaim its powers; (b) because Presidential elections receive many orders of magnitude more public interest and consideration than any other political matter, the President is the most representative figure that exists, imbued with the most political legitimacy and authority to wield the executive power, as opposed to the powerful unelected bureaucrats that wield so much of it today.

    1. By your logic, dissolving Congress and ruling by elected dictators is better than having administrative agencies.

      Because think of all the political legitimacy!

      1. You are a fucking moron.

        1. Don’t get angry at me because his paeon to the unitary executive has no limit to it’s argument.

          because Presidential elections receive many orders of magnitude more public interest and consideration than any other political matter, the President is the most representative figure that exists, imbued with the most political legitimacy and authority to wield the executive power, as opposed to the powerful unelected bureaucrats that wield so much of it today.

          1. You missed the other half of the argument, I guess. There is no argument here for legislative powers to accrue to the executive. That’s part of the very problem being addressed.

          2. “Don’t get angry at me”

            I’m not angry at you. I’ve come to realize that you’re a fucking moron, so it’s not your fault.

            “You missed the other half of the argument, I guess.”

            No, he’s just too stupid to understand it.

            1. Yes, you seem very not angry.

              1. Well, you’re a fucking moron, so what seems to be the case to you is pretty irrelevant.

      2. Not at all. Although, there is something to be said for that idea at least as a thought experiment.

        But my logic here doesn’t do anything of the sort. The unitary executive is both sensible and required by the Constitution. It does not imply that the executive should have any legislative powers. In fact, if you had read my post with an ounce of comprehension, you would have noticed the key argument that the unitary executive forces political pressure on Congress to stop abdicating its powers to unelected bureaucrats.

        The point is this: there are only three legitimate powers of the federal government. Legislative, judicial, and executive. Everything must fall into one of these three buckets. Outside of these buckets, there is no legitimate power to be exercised by the federal government. Today, there are two distinct but related problems with the executive bucket. The first is that we are putting a lot of powers into that bucket which either should be legislative or aren’t properly wielded by any of the three branches. The second problem is that the powers being put into the executive bucket aren’t actually vested in the President, but have accrued to an entrenched bureaucratic state, which is unconstitutional. These problems must be addressed in tandem, and fixing the second will help fix the first by the intended political operations of ambition counteracting ambition.

        1. I see you said that. But also that your logic is for power to continue to accrue to this one individual until the legislature wakes up, which fundamentally misapprehends the incentives of the legislature in giving up it’s power.

          As to your windmill tilting about the administrative state, I also don’t think giving ever more power to the President helps that situation at all.

          1. That’s not his fucking logic you fucking moron.

  16. In the case of the torture memo, an additional issue comes up about powers to control the military branch. Article I Section 8 grants Congress, not the executive, the power “To make Rules for the Government and Regulation of the land and naval Forces”. The President may issue orders but his word alone can’t make them lawful orders.

    1. Congress has that power but the President as Commander in Chief has that power as well. The difference is Congress’ gets the final say and its rules, whatever they are, can overrule whatever the President’s rules are.

    2. Rules means general rules [Articles of War or the UCMJ now], it does not mean Congress could pass a “rule” that required the President to get Congressional approval of specific orders or require the President to order a specific unit to a specific place.

  17. The answer is that the Constitution doesn’t give an answer. The Constitution vest all of the power in Congress. It doesn’t really restrict Congress’ ability to deligate that power in too many ways. How powerful the exectutive is is a political question that is settled by the political process and ultimately Congress. Congress could strip the President of every power he has or make any powers he still had a dead letter by denying him funding to execute them. Or Congress could grant the exectutive all kinds of discretion in fullifilling its duties or anything in between.

    1. This isn’t a question of non-delegation. This discussion includes cases where Congress has not delegated authority but the President argues for inherent authority.

      1. But even that comes with the implicit endorsement of Congress since Congress could revoke any authority the President claims to have.

    2. +10

  18. Refresh my memory here, what was the “repudiation” of the “interrogation memo”?

    1. Bradbury repudiated it in a memo to file (nice). Goldsmith repudiated it (and simultaneously quit rather than have to be in the same building with a psycho like Addington). Obama repudiated it (in a highly official sounding way).

      Take your pick.

  19. The question isn’t what the Founders intended this to mean. That would have limited Presidents Washington, Adams, and Jefferson.

    The question is, what limits the President’s executive power today? The answer is that the President’s power is limited by people’s willingness to consider disobeying his orders. The military has a fairly strong conditioning to following orders, but are still instructed that they have no duty to follow illegal orders. The bureaucratic agencies have varying degrees of independence.

    Ultimately, what matters is the President’s ability to lead… to build a sense of common goals and policies to achieve them. At present, we have a President incapable of leadership, who wants to rule, not govern. That’s why he is so ineffective. Of course, an ineffective President suits a substantial portion of the American populace just fine.

    1. There is a fine line between the bureaucracy legitimately disobeying the unlawful orders of a President and it asserting that it is not accountable to or under the control of a lawfully elected official.

      1. There’s a pretty bright line between the President’s appointed leaders of the agencies demanding specific outcomes, and following the Administrative Procedures Act, though.

  20. I think a difficulty here is that the Constitution splits the traditional British Crown powers between the President and Congress in a way that makes neither proposition true. The President isn’t a full inheritor of Crown powers. But he isn’t a mere ministerial executer of the law’s either.

    He certainly gets significant enumerated Crown powers, including the power to pardon, the Commander in Chief role, the power to receive ambassadors [or not] (which is certainly related to a power to recognize countries or not), and more.

    So although Congress gets important powers like the power to initiate war both formally (declaration) and informally (letters of marque and reprisal), among others, it’s clear the President’s role in foreign affairs isn’t trivial. It likely lies somewhere in between the two extremes proposed as the alternatives.

    1. Seems like a more reasoned approach than the original post.

      The “power to pardon” is certainly not a mere “execute the laws” power but a prerogative power. It stops the execution of a law.

    2. Your reference to “power to receive ambassadors [or not]” caused me to recall a parallel – one which is neither dispositive or probably even persuasive, but nonetheless interesting.

      The Founders of course utilized much of ancient history, including that of Rome, in formulating their thoughts and structuring the constitutional scheme. In the Roman Republic it was the Senate, not the Consuls, who received and consulted with foreign ambassadors.

      Having the President, rather than the Congress, as the repository of this power would tend to support your theory that the former inherited certain of the powers of the monarchy.

    3. Quaere: how could there even *be* any “crown powers” when the government erected by the Constitution was not the successor government to a monarchy? Did “crown power” secret itself into the interstices and penumbras of the Articles of Confederation somehow?

  21. “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.”

    Ooh, I like that one, it sounds clean and economical, and allows less room for discovering new Presidential powers in the penumbras. Can I have that version?

  22. Really looking forward to further posts, Professor Mortenson. Fascinating!

  23. Wait, we went straight from Revolution to Constitution?

    Huh.

  24. “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”

    I’m sympathetic to that argument, but if its to be fully realized, then Congress and the Courts need to be similarly constrained to their specified powers. I’m not holding my breath, what would more likely happen is congress and the courts would step in to the power vaccum rather than to devolve the power to the people and the states.

    I do believe that Congress is the most powerful branch of government, and has ample tools to assert that power via the purse and impeachments. But i don’t believe congress has the power or ability to effectively direct foreign policy, the military, or other “perogatives” of the President.

  25. I agree with the argument as far as it goes. I simply wish that it would address the flip side of the executive vs. prerogative argument: what happens if another branch attempts to seize for itself the powers claimed by kings as prerogative. To say that the President is an empty vessel who is empowered simply to execute congressional laws does not solve the separation of powers difficulties. A vessel has walls and even an empty vessel must keep somethings out.

Please to post comments

Comments are closed.