Executive Power

The Executive Power Clause—Crux of the Constitutional Settlement

The nation's force mustered in service of the nation's will.

|The Volokh Conspiracy |

Thanks once again to Eugene for the opportunity to share this research from "Article II Vests the Executive Power, Not the Royal Prerogative." I'd like to close with some thoughts on the larger project and its implications.

This first article lays the foundation. A full account of the Founders' presidency will require extensive engagement with the debates and political practice of late eighteenth-century America—all of which is coming in future work. But the evidence on Madison's bookshelf is so overwhelming that it would take something seriously compelling to dislodge the presumption it creates. Absent such evidence, the Executive Power Clause would have to be understood as vesting the wholly derivative authority to execute the laws, and nothing else.

If that's right, what does it tell us about the presidency that resulted? Some have rejected the law execution interpretation of the Executive Power Clause because they think it renders the President a limp dishrag. Certainly Chief Justice Vinson's Youngstown dissent rejected the historical interpretation on the ground that it would render the President an "impotent" "automaton" or "messenger-boy." And the arch-royalist Filmer echoes loudly in Harvey Mansfield's suggestion that "if any real president confined himself to this definition, he would be contemptuously called an 'errand boy'…a mere agent whose duty is to command actions according to the law."

These objections to "mere" execution fail to appreciate the importance of the clause. Certainly they underrate the power of law execution today, when the statutory framework entrusts the President with a staggering array of discretionary policy power. But more relevantly for the historical question, they underrate the clause's centrality in the eighteenth century as well. In fact, the problem targeted by the Executive Power Clause might have been the most important motivation for drafting the Constitution in the first place. Future work will explore the point in detail, but the bottom line is that the Founders were desperate for a more effective force to implement national projects and prohibitions.

Their anxieties on this score reflected one of the oldest problems of governance design. The treatise known as Bracton taught centuries of English lawyers that "it is of no use to make laws, unless there is some one to maintain them." The great jurist Coke intoned that "the life and strength of the Laws, consisteth in the execution of them: For in vaine are just lawes Inacted, if not justly executed." Writers competed to make the point most vividly, with analogies ranging from military force ("a sword made of Parchment and Paper in his Laws") to the human body ("the will which determines the act" and "the strength which executes it") to astrology (bodies in the "solar system" of governance "are attended with satellites of executive power") to musical instruments ("Lawes without execution, be no more profitable, then belles without clappers").

The Founders couldn't have agreed more, not least because of what they learned from the slow motion catastrophe known as the Articles of Confederation. You don't have to dig any deeper than the records of the Constitutional Convention to find Gouverneur Morris saying that "the efficacy & utility of the Union" would "depend" on "the due formation" of "the establishment of the executive." The Article II solution to the execution problem was no afterthought. In some ways, it was the crux of the whole settlement.

So don't be too quick to think the law execution theory minimizes presidential authority. The executive power has never been anything less than the nation's force mustered in service of the nation's will. Once it was vested in a single magistrate, and once that magistrate was given a veto to influence the content of his legislative instructions, the result was a massively powerful institution. Just not one with a free-floating foreign affairs power, or indeed any other authority not specifically listed elsewhere in the constitutional text.

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

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14 responses to “The Executive Power Clause—Crux of the Constitutional Settlement

  1. We Americans should always be vigil about government power, as when government power expands individual rights are surely to contract.

    The Executive Branch has grand powers all tied to one position, the Presidency.

    Ultimately, the Legislative Branch still has the most power which is the power of the purse. Congress can impeach members of the Executive and Judicial Branches, including the Chief Justice and President. Congress can also choose to cut all funding to the other two Branches, leaving the president to sit in the White House in the dark, if Congress so chooses.

    1. And then this same Congress creates “laws” of generalized hot air of intent and tells the president to issue actual laws people go to jail for, by decree.

      We are so far from theory it boggles the mind.

    2. Yes, but as our history has shown, Congress has a real collective action problem. They are not, in any way, an effectual check upon the president, especially if the Congress critters are members of the same political party.

      1. It can’t just be a fundamental problem with the institution though – Congress has been able to check the President in the past up to at least Nixon.

        1. “Congress has been able to check the President in the past up to at least Nixon.”

          The parties were not so ideologicaly or geographically sorted.

          An Eastern Republican was not as conservative as a Midwestern one nor as libertarian(ish) as a Western one. The Democrats had northern and southern wings that differed on race and other things.

          1. I agree that’s a big part of it.

            But even opposing Congresses are reluctant to actually check the President since about Bush. I have a theory that what’s driving Congresspeople these days is new. It’s no longer money, nor power, but legacy.

            These days, Congress is largely rich people who want to be important. As such, keeping your seat is the paramount concern, not ideology or even getting sweetheart deals.
            This means playing to your base rhetorically while never taking a stand practically.
            It also means a lot of them are miserable at having to do the kind of low-prestige work congressfolks have to do, but can’t stop or they’ll lose their legacy.

            1. Congress has gone through periods where Speakers have enormous authority to get over the collective action problem inherent in any human organization. But sooner or later the members of the House rebel and power devolves back to individual members. We are at a mid-point now, between a sort of free rein and the powerful speakers of the 19th century.

              There is a tension between members wanting to control their own fate/vote and the need for policies that their party supports to be passed into law, which requires members subordinate their wishes to the party’s, because in the long run even if a few marginal seats are lost in the passage of a particular law, the majority still benefit.

              The Senate has always been a place where members control their own fate/vote, or at least more so than in the House, because the president pro tem does not have much agenda setting and committee authority as the Speaker of the House.

              Congress can me visualized as two masses of people with ropes tied to them that are on the other end attached to a wagon. Only if enough of the mass pulls to one direction or another, does anything ever happen. Many of the mass would stand around, pull in the opposite direction, or LOOK like they are pulling the wagon somewhere for the benefits of the wagon being somewhere else, but never actually put the effort of pulling in (free riders).

            2. Particularly, they’re largely rich people who are rich because of being members of Congress. It’s absolutely amazing how somebody of, not modest means, but not great wealth, either, joins Congress, and then they magically become a money making machine.

              The statistics are rather flabbergasting. 157 of current members of Congress have enjoyed double digit average annual increases in their wealth since being elected. The top 100 START at 20% growth in wealth per year.

              At the other end, a fair number of members have seen their fortunes decline, often dramatically.

              I suspect the ones who managed to jump on the gravy train are the real problem.

            3. “Congress is largely rich people ”

              That is not true. Here is a chart on net work from 2016. The majority has less than 1 million in net assets. If one is from California or the northeast, even a million may not be “rich”. [note that 1/2 of the wealth is held by 12 people!]

              http://www.rollcall.com/news/politics…..-one-chart

              Its the rise of professional politicians that is the dynamic you reference.

              In the past, most [but not all] would serve a few terms and go back to law, banking etc. Now they come and only “leave” when defeated [or when they are losing committee chairs i.e. power after decades], then many go to law or lobbying in DC.

              1. Yes, a metric on the median wealth in Congress might be interesting, but suffice to say most in Congress are not working stiffs.

                What is the average age someone comes into Congress? From the limited view I saw on the Hill, most were older rich folks who hated the job but were driven to stay. A similar, but adjacent character to the professional politician you posit.

  2. The articles of Confederation were too weak. They sought to limit the power of the National Government but made it ineffective.

    The Constitution sought to limit the power of the National Government but make it effective. At every step the natural condition of the National Government was to be inert, except in cases of substantial agreement.

    When people complain that Congress “can’t do anything” I think the founders would be pleased.

    Congress in theory has the most power, but it is hardest to get act.

    The enumerated Presidential powers are pretty limited, execute the laws, make appointments subject to Congressional Approval (except for limited temporary appointments), negotiate treaties subject to the approval of Congress, pardon and commute sentences and serve as Commander in Chief of whatever forces Congress elects to provide.

    Every other power of the President must flow from Congress.

    1. New levels of governmemt should not be created, or if so, with great care. Politicians hunger for power and the wealth of skimming it brings, and will constantly seek to expand their control, as this offers more opportunity for skimming.

      So all levels of government seek to grow their power, and if it be at the expense of another level, so be it.

      Europe is learning this the hard way as their ancient nations are being reduced to toothless states as in the US. This process may take some 50 more years.

      1. The National Government was pretty limited up to two amendments, the 16th and 17th.

        The 16th which gave the Federal Government vast previously denied sources of revenue

        The 17th because it removed the States any role in the National Government and made Senators independent actors.

  3. Poetic governance? Put simply, Congress and the Executive can either fight to the death in a duel, or attempt to nibble each other to death like ducks. Get used to it.

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