Executive Power

Executive Power and the Metonymy Error

How has residuum theory gotten this all so wrong?

|The Volokh Conspiracy |

My second and third posts explain that the Executive Power Clause vested the power to execute the laws, and nothing more. As an evidentiary matter, the material they present barely scratches the surface. Heck, it's an expositional challenge for even the full article to convey the sheer uncontradicted weight of material supporting its thesis. It's fair to wonder, though: if the claims sketched here are correct, how the royal residuum could have become so deeply embedded in modern legal thought?

The answer lies in a series of systematic though at least somewhat understandable mistakes. For an example of the most important one, see Justice Scalia's dissent in Morrison v. Olson. "In what other sense can one identify 'the executive Power' that is supposed to be vested in the President," he asks, "except by reference to what has always and everywhere—if conducted by government at all—been conducted never by the legislature, never by the courts, and always by the executive?" True to form, Scalia then accuses everyone else of abandoning good faith legal interpretation. The majority opinion is "ungoverned by law," he says, inhabiting a world where "the concept of a government of separate and coordinate powers no longer has meaning."

The bluster here can't obscure Justice Scalia's methodological confusion, which is a version of what my article calls the Metonymy Error. It boils down to the following erroneous claim: if executive magistrates often do X, then that must mean that X is part of the executive power. As a historical description of the Founders' understanding, however, that sort of fuzzy inductionism is demonstrably wrong.

Anglo-American law did have a word for "stuff the King can do." That word was "prerogative," defined by Coke as being "all powers, pre-eminences, and privileges, which the Law giveth to the Crowne." Residuum theory treats the Executive Power Clause as though it were a synonym for this standard legal term. But that badly confuses the standard taxonomy, under which "the prerogative" was the basket category for royal power, and "the executive power" was one specific authority among a great many in that basket. This point is explored at length in the article, which shows how an array of commentators expressly distinguished the executive power from other branches of prerogative—including those relating to foreign affairs and national security.

The Crown's possession of executive power did lead to one standard shorthand that has caused genuine confusion among some modern readers. Law execution was indeed a core function of the King—perhaps even his defining role. And this close association with the executive function of government produced a familiar naming convention for the political institution which possessed it: "the executive," "the executive branch," and an array of variants that include "the executive power" in its nominal form. This was all just straightforward metonymy. It's no different from our own shorthand of referring to a jurisdiction's president, prime minister, or head magistrate as its "chief executive."

But it causes the following problem. Time and again, residuum theorists note a commentator's metonymic reference to the king as "the executive" or "the executive authority," only to conclude that all of the crown powers subsequently described are themselves conceptually executive. The leading scholarly statement of the residuum, for example, claims that "[a]ccording to Blackstone, the executive power 'is the delegate or representative of his people' who transacts with 'another community' because it is impossible for individuals of one community to transact directly 'the affairs of that state' with another." What Blackstone actually says in the unexcerpted original is quite different: "the king is the delegate or representative of the people," and "the king therefore" must "transact the affairs of that state." This sort of mistake is all over residuum theory.

One other misunderstanding has proved especially persistent. It emerges from a misreading of two authors—Montesquieu and Thomas Rutherforth—who observed that the executive power can be divided into internal and external branches. If this doesn't sound at odds with the schema sketched so far, that's because it isn't. Their taxonomic wrinkle simply highlighted the rather mundane point that when you're executing a task or instruction, it can be done in one of two directions: inward or outward.

And so Montesquieu is perfectly clear: legislative power is "no more than the general will of the state" and external executive power is "the execution of that general will." Of course a plenipotentiary delegate executing a treaty or a commander leading his troops is wielding executive power in this sense. That's just to say they're carrying out "the general will"—which, as Montesquieu has just finished saying, is defined by an exercise of legislative power, wherever it may be vested. Far from contesting the standard understanding of executive power, this description depends on it. As Rutherforth explains, "the external executive power, in its own nature, is no more an independent power of acting, without being controlled by the legislative than the internal executive power is."

And so even the authors most important to residuum theory agree: the executive power extended only to the implementation of instructions created by some other authority. It was simply an empty vessel until there were laws or instructions that needed executing.

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

NEXT: Congress Passed the FIRST STEP Act. What's the Second Step?

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  1. Seriously, has it not occurred to you that the simplest answer is just, “Judges are nominated by Presidents.”?

  2. So…supreme executive power derives from a (well-defined) mandate from the masses, not some aquatic tart heaving scimitars at you?

    1. If you are referring to The Lady of the Lake and King Arthur, It was a long sword, not a scimitar. The former is a straight double edged blade of European origin and the latter is a curved single edged blade of middle eastern origin.

  3. How does the residuum theory square with the concept as expressed in the Federalist Papers for a need for “energy in the executive”?

    1. How about that the executive needs to energetically carry out the will of the Legislature.

  4. This whole exercise strikes me as similar to those sovereign citizens who claim the warrant was invalid because it spelled their name in ALL CAPS, or that gold fringe invalidates the flag which invalidates the courtroom, or that the state legislature approved a form aof an amendment with a misplaced comma and so the amendment was never properly ratified.

    The discussion makes a good legal argument, but it ignore the reality that executives from time immemorial have behaved like executives now do, and no court in the US is going to suddenly buck the trend and declare that 200+ years of history are meaningless precedent and more than some judge is going to overturn 100+ years of income tax and bankrupt the government overnight.

    There’s only a very small chance of overturning Slaughterhouse, and that would have truly insignificant ramifications compared to this idea of redefining (or restoring the original definition) executive power.

    1. You may as well try to restore the original meaning of the Commerce Clause, or the Necessary and Proper Clause; you’d eliminate 99% of government overnight.

      Or actually enforce “Congress shall make no law” by eliminating slander and libel laws, or “shall not be infringed” by allowing felons to possess guns the moment they step outside the prison gate.

      May as well mandate that only 317 angels can dance on the head of a pin. It just ain’t gonna happen.

  5. I think a fundamental problem with all the nice theory here is that the office of President the Constitution created straddles and doesn’t really fit neatly into the nice theoretical categories. The President has significantly less power than a king, but significantly more than just a ministerial executor of the laws. This makes adjudicating what to do in unspecified situations hard. But in general, I think the idea of giving the President additional powers related to the enumerated powers has to be put in the context of giving Congress additional powers related to the enumerated ones.

    If the President has the power to receive ambassadors, why doesn’t it include the power to not receive ambassadors? And isn’t that really just a decision whether or not to recognize a country?

    It seems to me that a number of the powers described as “residual king” powers can also be derived, in an analogous way, from specifically enumerated powers.

    1. The question isn’t whether the President has other powers. The question is whether the President’s powers are conferred through “the executive power.” One of the biggest criticisms of the Royal Residuum theory is that, if the executive power does all the work, what’s the point of listing everything else?

  6. The author here seems to me to be conceptually confused.

    He speaks of an executive and the other branches having “separate, coordinate” power. More detail needs to be given to make that understandable.

    Take the case where Andrew Jackson ordered the Army to go ahead and carry out the Indian Removal Act in express defiance of John Marshall and the Supreme Court, after the Court declared the act unconstitutional. Was or was not this permissible for the President to do — and what remedies are rightfully available, and to whom, if it was not?

    If, as I believe, Jackson’s order was a violation of the Constitution rather than a rightful exercise of the separation of powers, then Jackson should have been removed from power, either by legal process or by armed opponents. But impeachment was never considered and would have failed if tried — most of the Congress agreed with Jackson, and most of the population did too.

    Obviously, I (and, I think, Prof Mortenson) regard it as a major design flaw in the Constitution that the Court was not given the power to remove a President who disobeys its orders. But most of the rest of the country seems to regard it as a beneficial feature; which would imply that the majority definition of legitimate executive power includes and authorizes what Jackson did.

    1. I think perhaps your comment is conceptually confused. You seem to be conflating “legitimate executive power” with “anything a president can do and get away with.”

      1. Either the legal system provides a remedy against an act, or that act is not illegal, however much it ought to be.

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