The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.]