The Article II Executive Power and the Rule of Law (Part I)

Anglo-American constitutional thought has long included a limited view of executive power—historically associated with thinkers who called themselves Whigs—according to which executive officials act in an environment of legal rules that empower and constraint them, and those rules do not come from the executive power itself.

|The Volokh Conspiracy |

The editors have graciously invited me to write a series of guest posts about executive power.  The more elaborate version of what I have to say is in a working draft that's been posted to SSRN, titled Executive Power.

Officials who administer the government and carry out the law do so in an environment of legal rules that empower and constrain them.  My central claim is that the Article II executive power consists exclusively of the capacity to perform the roles constituted by those rules, none of which comes from the executive power itself.

Executive power brings with it no authority to use government resources or to invade otherwise-protected private interests.  It brings with it no inviolable discretion in the administration of the government in its foreign or domestic or military operations.  All the rules that empower executive officials and give them discretion have sources other than the executive power itself.  The only inherent executive power is the capacity to play the role constituted by those other rules.  The President's role as Commander in Chief of the armed forces concerns the military hierarchy, not the substance of the law that applies to the armed forces.

This first post sets out that limited conception of the executive power.  It then begins the argument that the Article II executive power refers to that conception by identifying that understanding—the Whig executive—as a leading candidate for the meaning of "executive power" at the time of the framing.  The next post will pick up the argument concerning the Constitution's text and structure.  The third will discuss the available records of the Federal Convention, arguing that the Whig conception was known to the delegates and that their drafting choices indicate that they meant to employ it.

The fourth post will turn to the government function for which the argument to a more substantive executive power is often thought strongest: foreign relations.  The executive power of Article II, I will argue, gives the capacity to conduct foreign affairs but not any policy autonomy regarding them.  Any such autonomy arises as a residuum of the enumerated powers of Congress and the statutes that have been adopted pursuant to them.  Executive discretion as a residuum of legislation and legislative power can be found elsewhere, but executive power confers no discretion that legislation may not override.  The last post will discuss two important claims of executive power—executive privilege and the unitary executive—and then conclude by discussing two leading appearances of the Whig conception in American constitutional history.

Executive officials administer the government and carry out the law.  They act in an environment of legal rules that empower and constrain them.  Empowerment comes in the form of authorization to use the distinctive legal advantages of the government to pursue the goals specified by the law.  Some of those advantages are material, like National Park Service vehicles and Air Force fighter jets.  Some are juridical, like the ability of the United States to make contracts and to transfer funds to private people, for example in paying Social Security benefits.  One important kind of juridical advantage are privileges to engage in conduct that invade private interests.  When DEA agents break down a door to execute a search warrant, and when Air Force pilots fire on enemy positions, they rely on privileges like that.

Constraints come in two forms.  Some apply specifically to officials.  They include both affirmative and negative duties.  Fundamental to officials' roles are affirmative obligations to perform the tasks for which their offices were created.  The Social Security Administration is legally required to pay benefits as set out in the applicable statutes.  Other constraints that apply specifically to those who carry out the law are negative.  Many Treasury employees are forbidden to engage in transactions in federal debt that are perfectly lawful for private people.

The other form of constraint is the residue of privilege to invade private interests.  A DEA agent who breaks down a door without a warrant may well commit a tort by doing so, as a private person would.

All this is thoroughly familiar, but sometimes important insights are hiding in plain sight.  The rules that empower and constrain come from the relevant body of law, like the Social Security Act.  They are far too detailed, and rest on far too many policy choices, to come from anywhere else.  When Congress creates federal programs, it decides what resources to devote to them.  That includes the resource of invading private interests.  Whether EPA inspectors can inspect regulated premises without the owner's consent is up to Congress.  Constraints concerning bribes are found in the law of bribery.

The armed forces fit into this legal structure, as they too use the resources of the government to carry out the operations of the government.  Fighter jets and the ability to contract to buy them, and combatant privilege, and the permission to use bases owned or leased by the United States, are all assets, material and juridical, of the government.  Members of the forces use those assets to perform their functions and are subject to affirmative and negative constraints.  They must obey lawful orders and may not commit war crimes even if ordered to do so.  Appropriations for F-22s are found in appropriations statutes; the permissions given by combatant privilege come from the law of armed conflict.

Executive officials use the assets of the government to achieve the goals set by the law, subject to affirmative and negative constraints arising from the applicable legal rules.  All those rules have a source, mainly in statutes.  What the roles created by those rules have in common is the capacity to occupy them.  That capacity must itself arise from some legal rule or body of legal rules.

That more elaborate account of the legal world in which implementing officials operate feeds into two interpretive claims about the meaning of "executive power" in Article II.  The first claim I think is uncontroversial: the capacity to fill the positions creating by the applicable law is part of the executive power.  Indeed, that is its core.  Whatever else the executive power does, it enables those who hold it to administer the government—that is, to carry out the law.

The next and more controversial claim is that the executive power consists of nothing else.  The first step in seeing that that conceptualization best matches the text and structure of the Constitution concerns its intellectual background.  The limited understanding of executive power was familiar at the time of the framing.  It was especially common among thinkers on both sides of the Atlantic who were highly suspicious of royal power and called themselves Whigs.

That is the thinking that, for example, underlay Thomas Jefferson's 1783 proposal for a revised Constitution of Virginia.  Jefferson would have given the Governor "those powers only, which are necessary to execute the laws (and administer the government) and which are not in their nature either legislative or judiciary."

The next post will explain why the limited, Whig, conception of executive power best fits the Constitution's text and structure.

NEXT: Prof. John Harrison (U. Va.), Guest-Blogging About Executive Power

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  1. Looks good. The imperial presidency is a real problem, but somehow even the Trump presidency does not awaken Democrats to the root of the problem.

  2. This sounds good and I’m sure there’ll be some disagreements along the way, but I’m wondering why the focus is solely on the Executive branch.

    Prof. Harrison could also write, “My central claim is that the Article I legislative power consists exclusively of the capacity to perform the roles constituted by those rules, none of which comes from the legislative power itself.”

    Or start with, “We the People. . . . “

    1. What do you think happens if you start with, “We the People . . . ?” Are you suggesting that the sovereign is somehow constrained?

      1. Who do you consider to be the sovereign?

        1. Same sovereign the founders considered to be the sovereign—We the People, as noted above, and declared unmistakably by the founders. To avoid unfounded speculation, please note that the founders’ view of sovereignty is a matter of historical record—it is stated in the Declaration of Independence, leads the Constitution, and is further elaborated especially in the writings of founder James Wilson—acknowledged by historians to be among the most influential figures at the Federal convention.

          In short, the founders’ view was that no national government, and especially not a limited government, was possible without an all-powerful sovereign, which ruled at pleasure and without constraint. To create such a government—the power to create a government being the defining characteristic of sovereignty—the sovereign required unlimited power.

          Nor is the power to create government the end of the matter. While the government rules according to sovereign decrees (the Constitution is a sovereign decree), the sovereign continues to reign. The unlimited power of the sovereign—being always greater than the limited power of government—serves to constrain the government to follow the sovereign’s will.

          That is the founders’ view of sovereignty in a nutshell. There is nothing at all in the historical record to contradict it. I mention that because I am mindful that there are libertarians around, who think otherwise.

          1. There is nothing at all in the historical record to contradict it.

            This seems a bit too hasty. Natural Rights Theory (whatever you think of its actual merits), was in vogue at the time and certainly influenced many of the minds involved.

            Perhaps you have the primary sources showing that every member of the group you mentioned considered the sovereign to have no impediments to rule and considered every action by the sovereign legitimate. I’ll wait.

            1. Perhaps you have the primary sources showing that every member of the group you mentioned considered the sovereign to have no impediments to rule and considered every action by the sovereign legitimate.

              The question of sovereign legitimacy is its own question. The test of sovereignty is power—specifically the power to create a government at pleasure, and to make it rule. The test of sovereign legitimacy is different. It has to do with the willingness of the sovereign’s subjects to make the sovereign’s objectives their own, and act in support of them.

              There is room, as you may notice, for the sovereign both to stay sovereign, and to rule legitimately, without unanimity among the sovereign’s subjects. There is even room for a sovereign to rule in perfect sovereignty, without any legitimacy at all—as a tyrant, against the will of its subjects.

              Of course, not everyone agreed that American popular sovereignty was legitimate. Tories, for instance. And to the extent that some anti-Federalists preferred a rival notion of aristocratic sovereignty for the South, they too became critics, detracting from the legitimacy of popular sovereignty. But those critics lacked power sufficient to mount a successful challenge, and thus did not put American popular sovereignty in question—at least until the time of the civil war.

              At the Federal Convention in Philadelphia, it was popular sovereignty which carried the day, and which constituted a government. That government has ruled under popular sovereignty ever since, withstanding even the civil war.

              Experience teaches that American popular sovereignty will not last forever. It may even lose legitimacy while it continues, at least for a time. No doubt, a legitimate sovereign continues on firmer ground than one suffering a challenge to legitimacy. Nothing about the future is guaranteed. Perhaps some especially powerful manifestation of natural rights theory could appear, and displace popular sovereignty—or indeed, displace sovereignty of any kind—as this nation’s governing principle. I can’t imagine how that would work. Can you?

              Finally, there is a question whether this kind of theorizing ought to be considered a balancing of opinions, or instead, an investigation into facts. For instance, can you think of any notable nation-state during the last 5 centuries or so, governed on any principle except that of a government subordinate to a sovereign which rules at pleasure? If not, that might be taken as evidence to suggest what we debate is a matter of fact, not a matter of opinion.

              1. Stripped to its bolts then, your claim is that they believed that what or whomever establishes a government is ipso facto sovereign, in the tradition of what the pirate said to Alexander, and that soverigns respect or lack thereof for rights and what-not only bears on its legitimacy.

                Setting aside for the moment the question of whether or not this is an accurate characterization of the views of the hundreds of people who have been described as ‘founders’, this merely elides the questions mentioned in the earlier comments from one of whether the sovereign has the authority to do something to whether the sovereign has the authority to legitimately do something.

                If we take as granted the idea, which has existed at least since medieval times, that an illegal order is no order at all, then the is a distinction with little practical difference and hardly worth quibbling over.

                Getting back to your historical examples, if we are to take the Declaration at face value, then the attempt to breach unalienable rights is enough to abrogate a sovereign’s legitimacy, a proposition that was signed off on by many, though hardly all of the founders.

                In practice its hard to find any historical cases of pure unbridled despotism. Even the most high-handed of autocrats were always constrained in some fashion and sooner or later had to bow to reality in conceding the limitations of their power, e.g. Alexander.

                You may still argue that while some factor or another may have caused them to chose not to wield absolute power they still theoretically had the ability to do what so ever they wanted, but this is purely academic, powers that are only theoretical but can never actually be used are in practice no powers at all.

                You last paragraphs go a little further afield from the previous discussion, and are no longer bearing on directly on the opinions of one particular past group. Without expanding the scope too much the question to start with before further investigation is why any governing principle is needed at all, and don’t answer legitimacy we’ve already established that it can be done without.

                1. Getting back to your historical examples, if we are to take the Declaration at face value, then the attempt to breach unalienable rights is enough to abrogate a sovereign’s legitimacy, a proposition that was signed off on by many, though hardly all of the founders.

                  Your focus on unalienable rights is anything but a reading of the Declaration at face value—although among natural rights advocates it is a common and popular misreading. The claim of rights is preamble. The operative part of the Declaration follows thereafter:

                  That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

                  What constraint, by natural rights or otherwise, do you find in that quotation? That, and not any claim of natural rights, is the declaration of independence in the Declaration of Independence. Note that it is also a concise summary of the principle of sovereignty as I have described it—complete with an assertion of unconstrained power, and freedom to act at pleasure.

                  If you doubt that at all, read on through the Declaration’s lengthy itemization of particular abuses. Ask yourself, how many of these discuss natural rights violated? How many discuss offenses against the asserted sovereignty of colonial people? Count them up. Overwhelmingly, you will see that the focus is on offenses against sovereignty.

                  You write also:

                  . . . this merely elides the questions mentioned in the earlier comments from one of whether the sovereign has the authority to do something to whether the sovereign has the authority to legitimately do something.

                  That remark suggests sovereignty operating within abiding constraint, which is a contradiction in terms. Sovereignty needs no “authority,” legitimate or otherwise. Sovereignty needs only power. Whatever party has the ability to constrain a sovereign become thereby at least a joint party to sovereignty, and possibly a replacement for the previous sovereign.

                  As for the rest of your remarks, sure. As I think I already suggested, long-term, legitimate sovereigns probably do better than despots. A sovereign who enjoys support as a legitimate ruler gains power from that support, and one who lacks such support loses power. Power is the fuel of sovereignty, and no-power is sovereignty out of gas. Enjoyment of sovereignty may be longer or shorter accordingly. Do you see anything in that which intersects with natural rights?

                  1. That whenever any Form of Government becomes destructive of these ends

                    This is referencing the unalienable rights previously mentioned, hence we get the following formulation:

                    if [is destructive of unalienable rights] -> then [can be altered or abolished]

                    granted this isn’t an ‘only if’ so a direct limitation is not suggested, but indirectly it can be gathered that the fact a whenever is needed at all indicates something of such.

                    Put another way the drafters could have chosen a more plain assertion of unconstrained power and chose not to do so. This was not a document written in a haste constrained by time; words were chosen with care. The fact that option was not selected weighs against your case. You are it seems reading your own understandings into this paragraph.

                    Furthermore to avoid a constant string of alteration and abolition under this formulation rule needs to respect ‘unalienable rights’.

                    Now I don’t claim the document uniformly represents the views of the founders, in fact it doesn’t, but reality of the situation is your earlier hasty generalization

                    There is nothing at all in the historical record to contradict it.

                    remains off-base.

                    In fact you even concede that some (though not the majority) of the declarations listed abuses were for violations of natural rights which again cuts against your earlier claim.

                    [I’ve set aside for the moment a specific tallying of claims into the ‘natural rights’ column because the term was conveniently left undefined, or rather illuminated by only a too brief list of examples and even they likely disagreed about its contours and the two kinds of issues might even have seen some overlap.]

                    That remark suggests sovereignty operating within abiding constraint,

                    Perhaps were talking past each other here.

                    My to this point understanding of your definition for the term (and please correct me if I’m wrong)

                    Sovereignty == Absolute Political Power –> hence the ability to create or dismiss government at will.

                    Granted I don’t think this is what some of the other commenters mean when they use the term, which is why you sometimes talk past them but I digress.

                    Now let me tell you what I mean

                    Authority == The power to give orders/make decisions/compel obedience

                    Combining the two it is straightforward that a sovereign has absolute power thus absolute authority; this power can then be exercised legitimately or illegitimately.

                    A common view at the time was that power used in a manner destructive of natural rights was an illegitimate use of such power.

                    Hence the question of whether the sovereign has the authority to legitimately do something.

                    *In light of the above I was a bit confused by your final remarks which seem to imply sovereigns could posses gradations of power, but I take you were indirectly referencing co-sovereignty, please also correct this if wrong.

                    If you want to keep playing ping-pong that’s fine but expect 12 to 24 hours between my replies, cheers.

  3. Another home run for the Volokh team! This one a grand slam, if only for the timing.

  4. What about the power to bind the US by taking positions in court?

    Could congress genuinely bar the executive from defending (say the president or other argues the case themselves to avoid any concern about limiting the hiring of officials in court)? For instance could congress bar the president from appearing in court to contest an injunction based on the emoluments clause? Moreover, doesn’t appearing in court necessarily entail certain powers to bind the government to it’s litigating position (unless you want to say the government can’t be estopped).

    I know I’m nitpicking.

  5. “Anglo-American constitutional thought has long included a limited view of executive power—historically associated with thinkers who called themselves Whigs”

    The problem with the Whig view of power is that they see no such constraint in the power of the legislature. Take for example the last Bill of Attainder passed by parliament in England resulting in the execution of John Fenwick. The Whigs pushed the bill because their wasn’t legal sufficiency in the evidence to convict him of treason, and even worse he falsely accused several Whig lords of being his coconspiritors.

    Unbridled legislative power is every bit as dangerous to the liberties of the people as is unbridled excecutive power.

    1. Yes and no. Legislative power is almost always exercised by a largish group of people. Executive power is usually concentrated in a single person. In practice, that means the natural divisiveness and motivation for personal gain make it harder for a legislature to threaten liberties than for an executive to do so. It will be just as disastrous if/when the legislature does come together to exercise abusive power but it should occur less frequently.

      In other words, gridlock is a feature, not a bug.

  6. This guy has taken a break from trying to build a legacy for Judge Bork to try to make the case for modern support of Whig thinking?

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