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.]