The Executive Power Was an Empty Vessel

The three functions of a "complete" government. [UPDATE: This is Julian Mortenson's post, but I erroneously posted it at first under my own byline -- sorry about that!]

|The Volokh Conspiracy |

My last post showed that, at least on Madison's bookshelf, the executive power meant the power to execute the law. As "Article II Vests the Executive Power, Not the Royal Prerogative" goes on to demonstrate, everyone understood that power to be both subsequent and subordinate. In fact, until there were legislative instructions to implement, executive power was just an empty vessel. Unless the Founders suddenly and totally abandoned the ordinary meaning of the term, the Executive Power Clause was conceptually incapable of serving as a source of independent substantive authority.

At bottom, the empty vessel point is simple. It relates to the standard eighteenth-century trope of a "perfect" or "complete" government. Modern scholars have sometimes misunderstood such references as a gesture toward the police power. That's wrong. When the Founders talked this way, they weren't referring to morality, beauty, or jurisdictional competence. Rather, they meant the idea of government action as a three-part functional sequence: successive exercises of what "Cato" was typical in calling "legislative, judicial, and executive power." A government couldn't be "complete" unless it had all three powers with respect to each subject matter competence over which it had jurisdiction.

As "A Bostonian" explained, that's because these "three grand immutable principles in good government" were logically intertwined. Legislative action was the formulation of political intent in the form of operational instructions. Judicial action (sometimes viewed as a subset of its executive sibling) was the impartial assessment of how legislated instructions should apply to particular circumstances. And executive action was the active implementation of legislated instructions in the real world. Each was indispensable to a coherent whole. "A Bostonian" was typical in observing that these functional powers of government "so intimately depend upon each other, that it is an absurdity in terms to give the name to any constitution where they are not in complete and uniform action."

Let David Hume stand for a long list of commentators in explaining the logical consequences: "The executive power in every government is altogether subordinate to the legislative." Note the formulation: in every government. This was not a contingent point about parliamentary sovereignty. Nor was it otherwise grounded in the particular constitutional law of England. Hume was making a conceptual and thoroughly generalizable point about the relationship between legislation and execution. It was thus a commonplace for Gad Hitchcock's famous 1774 election day sermon to observe that "the executive power is strictly no other than the legislative carried forward, and of course, controllable by it."

The point was common ground across the ideological spectrum. The most radical republicans agreed with Rousseau that "the executive power … is only the instrument for applying the law." The most committed divine rights theorists agreed with Filmer that "[w]hen the law must rule and govern the monarch, and not the monarch the law, he hath at the most but a gubernative or executive power." And the likes of Edmund Burke scolded those who "mistake the condition of a King of Great Britain" as "an executive officer." To the contrary, Burke insisted, the English monarch "is a real King," concerned with must more than just "contemptible details."

As I'll discuss in a later post, Burke and Filmer's disdain for the executive power was unwarranted. But their point reflects an uncontested universal understanding. The only thing conveyed by "the executive power" was the empty-vessel authority to execute instructions issued by a valid exercise of legislative authority. Without the latter, the former had nothing to do.

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

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  1. Didn’t the Supreme Court reject the “empty vessel” idea (and adopt the “royal residuum” theory) in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)? You’re probably getting to that, but I’d like to hear your thoughts on it.

    1. Curtiss-Wright was limited external relations, and stated that for internal affairs, federal powers were limited to those specifically enumerated in the Constitution or necessarily implied from the enumerated powers. Further, Curtiss-Wright involved a joint resolution of Congress that authorized the president to place an embargo on exports. It did not suggest that the president himself had the residual powers of the British monarch or could impose such a requirement on his own. The U.S. Government as a whole, not the Pres by himself, inherited British sovereignty when it came to external relations.

      And as I recall, Curtiss-Wright is the only Supreme Court decision to suggest that the federal government draws power from anything other than the text of the Constitution.

      1. Good point, but Curtiss-Wright goes further than that. The first part of the analysis–that the United States inherited unenumerated powers directly from the British Crown–is limited to the federal government. But the second part, says that the President exercises some of those “royal residuum” powers exclusively, and that “Congress itself is powerless to invade” those areas of the President’s authority.

        Curtis-Wright could be wrongly reasoned, and the courts may be reluctant to hamstring the President in the area of foreign affairs. But there are applications of the President’s power that are regularly exercised and not found in the Constitution or statute, and the scholar writing this series of articles should grapple with that and with Curtiss-Wright.

        I’m reminded of Justice Jackson’s concurrence in Youngstown Steel:

        “A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only
        supplies more or less apt quotations from respected sources on each side of any question. They largely
        cancel each other.”

        1. Technically, the discussion of the president’s power is dicta because that was not the actual scenario facing the court. And one can say that one branch of government is powerless to invade an area entrusted to another branch without cloaking that other branch with semi-royal powers.

      2. I would argue immigration cases do to a significant degree. Those cases rule that the power to control immigration and who can come to the country is an inherent power of sovereignty.

  2. I’m willing to suspend disbelief and accept that the founders and framers and commentators of the time actually said “The executive power in every government is altogether subordinate to the legislative.”

    But I find it impossible to believe that any political executive, having taken hold of the reins of executive power, actually gave more than lip service to that idea, or behaved that way. No doubt legislators like to think of themselves as wearing the robes of ultimate power, but no executive is going to tell them the truth.

    Maybe my attitude stems from being on the receiving end of 2 centuries of practical experience with legislators ignoring problems once legislation had solved them, and executives chortling in ecstasy at receiving more and more power from pig-ignorant legislators. But this idea that “executives are subordinate to the legislature” doesn’t hold anywhere in any government that I know of, from school boards to the UN.

    1. I think we have some examples of executives telling legislators they have ultimate power. Obama had his phone/pen declaration, DACA, ACA implementation (eg ad hoc exemptions and delays), recess appointments, Title IX guidelines, net neutrality, and military action without authorization from Congress, all done on the premise that Congress wasn’t acting/fast enough. Maybe Obama deserves points for being so brazen about usurping legislative authority. Other presidents have tended to be more cagey about it, as you say.

      1. I would nominate President Taft as a chief executive that largely worked under the assumption of legislative superiority.

  3. I can see how this applies to domestic policies, but it’s a struggle to see how this applies to the conduct of foreign affairs and national defense.

    Foreign affairs and national defense are not pursued as an execution of legislative commands, or judicial decisions, but as a wrestling match with other sovereigns. Certainly the conduct of these matters may be constrained by legislative commands, but even in the event of the conduct of a war declared by Congress the executive does not execute a series of legislative commands, it just pursues the war. When it responds to an attack, we don’t even get the Congress’s declaration.

  4. I prefer the idea that the “the executive power” is shorthand for the powers listed in Art. II Sec. 2. Are these powers insufficient for a truly modern President, necessitating finding extra powers in the penumbras?

    1. And Sec. 3 as well

  5. So, can it be acknowledged now that there is only one unitary executive department controlled by the President under the Constitution, albeit according to some a unitary empty vessel? And someone better tell the mass of candidates vying for this “power” how empty the authority really is. The joke is on them I guess.

    1. Didn’t “unitary executive” used to mean that we have one President instead of, say, a multi-person panel like in the former Yugoslavia?

  6. I am not sure about the empty vessel claim. Even absent any acts of Congress whatsoever there seems to be at least a few laws to execute.

    Art 4 of the Constitution contains several commands. Suppose citizens of a state were denied the Privileges and Immunities of Citizens in the several States, could the president act to ameliorate the situation, even if Congress refused to pass legislation? Are the commands (“shall”) of Art 4 dead letters?

    1. I think the point is that executive power on its own is an empty vessel. Not that any specific empowerments given to the executive by the constitution is an empty vessel.

  7. How do we reconcile this with the administrative state?

    It seems that Congress has delegated much of its legislative responsibility to the executive branch by passing non-specific laws stating goals rather than methods.

    Think of the “general welfare” clause in The Constitution. If Congress passed a law saying, “The Department of HHS shall act to maintain and improve the general welfare,” how is the power of the executive branch bounded in the future?

    1. But this is not entirely the fault of Congress, but is, in part, unavoidable.

      The power to execute laws necessarily involves judgments about how they apply, about priorities, about allocation of resources, about a million specific points. Congress can’t write software that handles all cases and conditions.

      So the line between legislative and executive power can not help being murky.

      1. Perhaps necessary yes, but IMO illegal without amendments to change the separation of powers.

        1. I don’t think so.

          IMO it is impossible for the executive “execute the laws” without having some discretion, if only that imposed by budgetary limits.

          That which is impossible to avoid cannot be illegal.

  8. So, Congress can direct the Commander in Chief on the tactical operations of war and the President must take such action as Congress decides?

    There is a term for this, it’s called Articles of Confederation, aka Suicide Pact.

  9. I was hoping this series of posts could substitute for reading the paper. But this is all too interesting, I’ll have to read it.

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