The Executive Power Is the Power to Execute the Laws

Sometimes simplest is best. [UPDATE: This is Julian Mortenson's post, but I erroneously posted it at first under my own byline -- sorry about that!]

|The Volokh Conspiracy |

As a historical matter, what did the Executive Power Clause vest in the President? If Justice Scalia's District of Columbia v. Heller opinion is any guide, originalists looking for the eighteenth-century meaning of such terms should start with contemporary dictionaries. Heller cites two. One doesn't help much with the meaning of executive power. But here is Samuel Johnson's first definition of "executive": "Having the quality of executing or performing. They are the nimblest, agil, strongest instruments, fittest to be executive of the commands of the souls. Hale."

If that's what "executive" means, then the law execution understanding of the Executive Power Clause is plainly correct. (See yesterday's post for a primer on the competing claims about the meaning of the clause.) The executive power is the authority to "execut[e] or perform[]" someone else's "commands" as their "instrument[]." That leaves the clause with no grammatically plausible hook for an inherent substantive authority over foreign affairs or national security policy.

You might wonder whether other dictionaries told a different story. Well, the article prompting these posts examines more than a hundred. (This part of the research was not exactly scintillating.) Every definition I found is in accord. In fact, the closer to the constitutional context they get, the clearer the point. In governance, the object of execution is the laws, such that "executive" is often defined as "having the quality of executing or performing. Active; having the power to put in act the laws." And the source of that command was the legislative process, such that a number of dictionaries extend the core definition by going on to specify: "Active, or putting into execution, opposed to deliberative or legislative."

Honestly, the residuum thesis was so embedded in my brain that I expected to find at least a few definitions that might colorably bear the weight of the claim. But I didn't. If dictionaries are your guide to ordinary meaning, they categorically refute the royal residuum thesis. It's not contested. It's not colorable. It's just wrong.

Some readers might share Justice Stevens's objection to Heller's brand of textualism. Maybe slicing up "executive" and "power," reading each individually, and combining their definitions treats textual interpretation like a math problem. And maybe that's a little goofy. But if you have sympathy for this objection, note that the problems for residuum theory only get worse on a more holistic approach. Because definitions of "executive power" as a unit just sharpen the point: it means "[t]he power of putting in execution." How about the full phrase, "the executive power"? I've found two dictionaries that include it. Readers who remember their Latin will see that each amounts to the same thing: "Administratio; potestas aliquid administrandi" and "that [which] serves to execute."

So an unbroken array of dictionary definitions teaches that "the executive power" cannot be read to refer to the powers typically held by an executive. To the contrary: on the dictionary approach to interpretation, the Executive Power Clause must be read as simply vesting "the power to execute."

A serious effort to reconstruct historical meaning of course requires a lot more than dictionaries. And so the article is mainly concerned with exploring the background literature: legal treatises, political theory, polemical commentary, and the records of judicial and legislative deliberations. If anything, this material cuts even more decisively in favor of the law execution thesis. As explained both in the article and in a Lawfare post almost five years ago, Blackstone's treatise is typical of the era in describing legislative power and executive power as two steps in a logical sequence. If the "legislative … authority" was "the right … of making … the laws," he explained, then the "executive authority" was simply the corresponding "right … of enforcing the laws."

As usual, Blackstone was just restating conventional wisdom. Locke similarly described "the legislative power" ("a right to direct how the force of the common-wealth shall be employed") as a logical predicate to "the executive power" ("see[ing] to the execution of the laws that are made, and remain in force"). Sidney said "the legislative … power … is exercised in making laws," and "the executive power … is exercised … in judging controversies according to such as are made." Even Filmer—the greatest theorist of royal absolutism, and the fourth author listed in the "Politics" section of Madison's 1783 library list—described executive power as "a power of putting th[e] laws in execution by judging and punishing offenders." As Filmer saw things, subjecting the King to statutory authority means that he is "brought from the legislative to executive power only." There's lots and lots more where this came from, and it's all to the same effect.

So both the dictionaries and the background literature overwhelmingly support the law execution understanding of the Executive Power Clause. As my next post will explain, they also make clear that executive power was an empty vessel—good only for implementing instructions specified by some prior exercise of its legislative companion.

[For all the posts in this series, click here.]

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  1. I think it’s generally true that the executive power is the power to “take care that the law be faithfully executed.” But,

    “That leaves the clause with no grammatically plausible hook for an inherent substantive authority over foreign affairs or national security policy.”

    Perhaps goes too far, in that Presidents DO have a few specified responsibilities in those areas, such as negotiating treaties, or being commander in chief of the military.

    1. +100

    2. It’s more than generally true, it’s in the Oath the president takes.

      But otherwise agree.

      This blog concentrates on Art II, Sect 1, but Sects. 2 and 3 do expand the powers.

    3. It’s more than generally true, it’s in the Oath the president takes.

      But otherwise agree.

      This blog concentrates on Art II, Sect 1, but Sects. 2 and 3 do expand the powers.

      1. I meant generally in the sense of applying to most, but not all, areas of Presidential responsibility.

    4. If the executive power is an “empty vessel” (and, strange there are so many democrats vying for an opportunity to win this empty vessel authority in 2020), is this article at least an implicit acknowledgement that all “empty vessel” executive authority, not just some, is vested in the President? So, another argument for the unitary executive theory.

  2. “… good only for implementing instructions specified by some prior exercise of its legislative companion”.

    But isn’t that what all Presidents claim, that the Executive Branch is merely carrying out the instructions of Congress?

    Granted, the instructions are often very vague and specify only that a goal be achieved, without detailing the specific actions to achieve that goal, but is it realistic or desirable for a President to say something along the lines of ‘sorry, you need to be more specific’ and do nothing until Congress clarifies the law to the President’s liking?

    1. “but is it realistic or desirable for a President to say something along the lines of ‘sorry, you need to be more specific’ and do nothing until Congress clarifies the law to the President’s liking?”
      Yes, that is exactly what the president should do. It isn’t realistic, but it is desirable.

  3. Whether or not the vesting clause grants any substantive powers to the President, it should be clear that it precludes the granting of executive power to anyone else.

    No officer of the Executive branch (whether principal or inferior) can exercise any lawful discretion in a manner contrary to the preferences of the President if that officer could exercise said lawful discretion in a manner consistent with the preferences of the President.

  4. Yes, the executive executes the laws. The executive branch also has defined powers which go beyond that. We’d definitely be OK if we just stuck to each branch performing the duties defined in the constitution and only those duties.

  5. 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.

    1. Agreed but don’t forget Art I, Sect. 8: To make Rules for the Government and Regulation of the land and naval Forces.

  6. I don’t see how this discussion bears on any actual current or recent political debate. Obviously the President doesn’t have the prerogative power to create new courts, or stuff like that. (I’m not sure whether the Framers would have thought that the English king had that power in 1789, though he certainly did once.) But most of the constitutionally aggressive actions of presidents in the past hundred years have either been pursuant to statutorily granted powers (e.g., the power to exclude classes of aliens, or reallocate military construction funds), or pursuant to Congressionally ratified treaties (e.g., the power to resist the North Korean invasion of South Korea), or appurtenant to the president’s powers as commander in chief (e.g., the power to intern untrustworthy civilians in time of war).

    1. You kind of lost me with that last one.

      1. Executive Order 9066 is expressly denominated a military measure taken by the President as Commander-in-Chief.

        1. Yeah, I realize that FDR claimed to be exercising such a power in interning innocent US citizens in prison camps.

          What I’m missing is the bit where that is actually a legitimate part of the CIC power.

          1. He said he had the power so he did. Seems to be it, I guess.

          2. The power of military authorities to order civilians to evacuate an area of military operations is long-established. You might as well ask what gave General Sherman the power to order all civilians to leave Atlanta.

            And the military can pick and choose, like ordering all males of military age to evacuate, or whatever. The questions (then and now) about the evacuation order are whether the U.S. military can pick and choose on racial grounds, and (assuming that the answer could ever be yes, which not everyone agrees), what showing is necessary to justify such discrimination.

            The whole question turns on what are the legitimate powers of the commander-in-chief, not on some residual prerogative.

            1. There’s a difference between evacuating and being imprisoned, even setting aside the idea that you could declare basically the entire country to be “an area of military operations”.

              1. OK, that’s a third question, whether the military power includes interning people (i.e., requiring them to remain in one particular place) or is limited to ordering them to leave a particular place. This question has nothing to do with the prerogative powers of the English monarchy.

                Anyway, Japanese-American internment only applied to the West Coast, not the entire country.

                1. You seem the think the concept of Commander-In-Chief is itself an independent “military” power. It isn’t. All it means is that the president ultimately has the authority to tell the highest ranking military officials what to do, not what the military in general can or cannot do.

  7. Shouldn’t the byline be Mortenson rather than Volokh?

  8. As a practical matter, the Presidents generally have only been able to expand their executive authority because Congress has, for perhaps a century, been working diligently to abdicate its legislative authority. Senators, since the ratification of the 17th Amendment, have relied upon voters to return them to office. For Representatives, that has been the case from the beginning. And if your first and highest goal is to get yourself re-elected, nothing threatens that goal more that having to take responsibility for, be accountable to the voters for, policy decisions which go wrong. Indeed, even policy decisions which go right (as rare as such albino unicorns may be) are likely to rub at least some substantial bloc of voters the wrong way. The easy way out is to pass vague laws with ambiguous goals and then delegate the hard work of writing in all of the details to an executive agency or the President himself.

    If you really want to reduce the President’s king-like powers, the only remedy is to force the legislative branch to do its job and stop delegating its own authority.

  9. The power to execute the laws?

    Firing squad or guillotine?

  10. I think its absurd to just look at dictionaries without looking closely at historical practice during at least the first 4 administrations.

    For one thing, the 1st congress was only in session 9 months of the year, the 2nd congress was only in session 6 months of the year.

    I don’t see how the executive function would work if its as severely constrained as the author seems to think with a Congress that can be out of session say from March 4 to October 24th 1791.

    1. It could function because there wasn’t a huge amount for the federal government to do. Aside from putting together a military, and diplomatic relations, almost everything was a state responsibility.

  11. I’m going to share something off-topic relating to executive powers. This blew me away today.

    “More than 9-in-10 conservatives support placing reciprocal tariffs on foreign imports to protect American workers and their jobs, a new poll reveals. . . Overall, about 80 percent of voters said they support Reps. Sean Duffy (R-WI) and Matt Gaetz’s (R-FL) “U.S. Reciprocal Trade Act” which would allow the president to impose the same tariff on a foreign import that another country has imposed on the same product from the U.S.

    About 91 percent of conservatives, 88 percent of Republicans, and 90 percent of Trump supporters said they support reciprocal tariffs to protect American jobs and U.S. workers.

    Across party lines, reciprocal tariffs are extremely popular with voters. Roughly 75 percent of Democrats and 77 percent of swing voters said they supported putting tariffs on foreign imports at the same rate other countries put tariffs on U.S. goods.

    The reciprocal tariff policy is also supported across racial lines, with 83 percent of white Americans, 75 percent of black Americans, and more than 70 percent of Hispanic voters supporting the protective initiative.

    The pro-tariff views of the American electorate are in stark contrast to the billionaire donor class, which favors a global open markets policy of free trade that outsources American jobs to foreign countries as a result.”

    1. I suspect that free traders could get behind reciprocal tariffs IF they were the only tariffs the US could impose and they had an automatic repeal clause. They’re economically stupid. But they have good political heft and would still possibly work OK as a mechanism to ultimately reduce trade barriers and lead to long term economic benefits.

      But Trump isn’t putting tariffs in place just for tit-for-tat reasons. The whole trade deficit basis is unsound. And so, AFAICT, “reciprocal tariffs” are simply a BS political talking point because the reality is that we’ll still levy heavy tariffs on non-favored trading partners anyhow.

      1. I suspect that free traders could get behind reciprocal tariffs IF they were the only tariffs the US could impose and they had an automatic repeal clause.

        I think you are mistaken. The argument for not having tariffs applies even if other countries have them.

        One formulation, attributed I think to Bastiat, is, “If other countries have rocky coasts, should we block up our harbors?”

        1. Let’s say that, in the 1930’s, Germany was offering to sell munitions to all and sundry at incredible bargain prices. Prices so low that a free trade in munitions would bankrupt any other country’s munitions industry.

          Would it have been smart of other countries to let their munitions industries go bankrupt?

          The reasoning behind tariffs always being a bad idea really only works in a world where there are no hostile countries, where you can let an industry go bankrupt and it never comes back to bite you.

          1. You think a hypothetical in which German taxpayers were subsidizing the whole world’s armament is an argument for tariffs?

            1. “It will generally be advantageous to lay some burden upon foreign industry, for the encouragement of domestic industry, when some particular sort of industry is necessary for the defence of the country. The defense of Great Britain, for example, depends very much upon the number of its sailors and shipping. Defense is of much more importance than opulence.” Adam Smith

          2. The reasoning only works in a globalist one world government. A single market implies a single law.

          3. Your argument doesn’t really work because there is no scenario where that would actually happen; Germany in the 30’s would never have the power to bankrupt the munitions industries of any non-small country, let alone all of them. Also, in that scenario, even without restrictions on importation, a country could still directly invest in domestically produced weaponry. Setting that aside, free trade doesn’t mean tariffs are bad in all circumstances, ever. It means economically tariffs are always bad, which is, in fact, true. Import or export restrictions for another purpose, such as an actual, not fake, non-pretextual threat to national security, could make sense.

        2. Bastiat is always a good guess, and he did make roughly equivalent arguments in favor of free trade, but I think you’re thinking of Joan Robinson.

        3. And what is being shipped into the harbor? Some slightly cheaper goods in exchange for the destruction of domestic industry, livelihood, and jobs. Including industries key to national security.

          Oh, and we’re just enabling the rise of a global communist superpower in the process.

  12. One analogy might be the colonial Councils that elected Presidents from among their membership for their sometimes fractious dealings with royal governors and London. Perhaps one reason why there’s no Governor of the USA.

    https://tinyurl.com/yxuztpud [encyclopediavirginia.org]

  13. If Justice Scalia’s District of Columbia v. Heller opinion is any guide, originalists looking for the eighteenth-century meaning of such terms should start with contemporary dictionaries.

    But Scalia was an incompetent historian, who knew, apparently, nothing at all about professional rules for historical interpretation. In Heller, there is no sign that Scalia even knew such rules existed, so he broke them again and again, delivering incompetent history and calling it originalism. So Heller should not be any guide, and nobody should start for originalist meaning with contemporary dictionaries.

    Why not? Well, for one, compiled as dictionaries were at different times and different places, they will disagree. But more to the point, unless a historical figure is quoted in the historical record making reference to a specific dictionary, apropos of the very terms under historical discussion, nobody can know at all that the dictionary definition is applicable to what happened?or that historical figures did not have different understandings of the words?or that the very historical acts under study were not, as they unfolded, then and there, imparting new meanings to those words, which we might find referenced in subsequent dictionaries if we consulted them.

    Compared to the historical record itself, dictionaries are the weakest of sources?as useless and potentially misleading as most other irrelevancies drawn from outside the historical context under study.

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