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

The limited, Whig conception of executive power best fits the text and structure of the Constitution.

|The Volokh Conspiracy |

The first post set out a conceptualization of the executive power, the Whig executive, according to which it is the ability to operate in an environment of legal rules that empower and constraint officials but does not itself provide any of those rules.  That post began the argument that the executive power of Article II consists entirely of that ability.  The first step was to point out that the limited view was one well-known understanding at the time of the framing.

The next step is to see that the Whig view was a natural understanding of "executive."  Some officials "carry into execution," in the words of the Necessary and Proper Clause, the law in that they conduct the operations of the government.  They transform the abstract rules of the law into actual conduct in the world, from operating post offices to inspecting incoming vessels.

The capacity to perform that function can reasonably be attributed to the executive power itself, which operates whenever the function is performed.  The rules that empower and constrain, by contrast, cannot plausibly be attributed to the executive power.  That concept is far too general to give any specific information about the existence or content of the many roles that implementing officials play.  Article II says nothing about the number or function of park rangers.

The armed forces are part of the executive component of government, subject to the law.  Their composition and funding are determined by Congress, not by Article II.  Commanders, including commanders in chief, are subject to the law.  The President's status as Commander in Chief establishes civilian control of the forces but does not supply any of the law that governs them.

The Whig understanding of execution fits into the three-part division of government power found in the first sentences of Articles I, II, and III.  Legislative power makes and changes legal rules.  Executive power, which is distinguished from legislative power in the three-way conceptual scheme and separated from it in the Constitution's institutional structure, is subject to rules made elsewhere.

The Whig understanding of executive power matches the contrast with legislative power so well that it is natural to wonder how anyone would think that it entails anything other than the capacity to proceed according to the law.  Broader understandings of executive power are indeed available, and were at the time of the framing.  Their source is in the British constitutional system.  In that system, the officer who held the executive power as Whigs understood it—who oversaw the operations of the government and carried out the law—was no mere chief civil servant.  The chief executive was the sovereign monarch, with many more powers.  The question about Article II is whether the American executive power includes any of the additional parts of the royal power.

Much of the royal power cannot be attributed to the executive power because it was legislative.  British monarchs held significant authority to make and change the legal rules that governed private people, like the power to set the standard of weights and measures.  All legislative power the Constitution grants is given to Congress, and the Vesting Clause of Article I does not style that grant as an exception to the executive power later given in Article II.  It identifies the legislative as one of the three powers of government and gives Congress so much of it as is held by the United States as opposed to the states.

Articles I and II together cannot be reconciled with the notion that the latter's executive power is the whole of the royal power, and no one has ever believed that it is.  Rather, proponents of an executive power that goes beyond conducting the government and carrying out the law would include, not all the King's authority, but control over foreign affairs.  John Locke identified foreign relations as a distinct governmental authority: the federative power.  Locke did not regard the federative as part of the executive power, but maintained that it was usually held by the same officer who carried out the domestic law.  The Article II executive power, goes the reasoning, includes the federative power.

A basic premise of the Constitution is that government power comes in three types, familiar from the first sentences of Articles I, II, and III.  A document that assumed a fourth power would confer it and not simply include it in one of the other three.  The Constitution does not need to confer a fourth power, because the three it does deal with are collectively exhaustive of what government can do, with respect to both domestic and foreign affairs.

That feature of the tripartite division of power can be easy to miss, because the tripartite division breaks the foreign-relations power into pieces.  The actual conduct of foreign relations is indeed an executive function.  Executive officials carry on foreign relations as they carry on all government operations.  Carrying on an operation, however, does not entail making policy about it.  Social Security officials make payments pursuant to statute, and subordinate State Department diplomats negotiate with foreign governments pursuant to instructions given them by their superiors.

Executive power has part of the federative power, but only the part about implementation.  Legislative power can make rules about foreign relations just as it can make other rules, and statutes can prescribe rules for diplomats just as the diplomats' superiors can.  If the Constitution did nothing more than give Congress legislative power and the President executive power, the President would carry out policy made by statute in both the foreign and domestic arenas.  The federative power would be present in such a system, but would be divided between the legislature and the executive.  The tripartite system is enough, and no fourth power is needed.

The institutional structure the Constitution creates, however, might seem to undercut this conception of executive power.  That structure allocates the three powers to institutions that are politically independent of one another.  The Whig reading entails that executive power brings with it no policy discretion, and is wholly bound by the law.  If executive officials are therefore in an important sense subordinate to the law the legislature makes, why make them independent of the institution that makes the law?

Legislative and executive power do indeed complement one another.  Nevertheless, there are reasons to have an independent chief executive, and additional reasons to have an independent President, who is the chief executive and more.

As to the executive power, implementing officials inevitably will exercise substantial discretion even if the Constitution itself does not confer any on them.  A legislature that can in principle be as detailed as it wishes can in practice specify only so much.  What the legislature cannot specify, implementing officials must decide, so those officials will in fact make important policy choices.  Putting those policy choices under the supervision of a high official with an independent connection to the people is a good way to ensure that they will reflect the people's will.

Next, an independent executive that administers law made elsewhere is justified on grounds that also support independent courts applying laws made elsewhere.  If the two operational branches are bound by the law, but not otherwise by the will of legislators, then legislators will have to convey their directives through the open channels of the law.  They will be less able to work through back-door communications to politically dependent officials who seek to curry favor with them.

Finally, presidential power goes well beyond executive power.  Perhaps the President's most important authority is legislative: the veto.  That power justifies making the President accountable to the people through a distinct, and distinctly more national, electoral channel.  Similar reasoning applies to the treaty and pardon powers.  An independent President, and an independent executive, are in accord with the Whig conception of executive power.

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  1. We have to remember that there are no absolute, brick wall, divisions between Congress and the President, and they’re not truly independent.

    The President can convene and adjourn Congress.
    The Vice President is the President of the Senate.
    And the big one; Congress can impeach and they try the President.

    1. Yeah, I also noticed eliding that Congress declares war.

      There’s loads of documents of the Founders before they decided on a President where they were pretty unsure what the executive would entail. And it’s hard to argue the judicial power was assumed by all to encompass what Marbury built it into.

      The legislative power is the only one I’ve not heard any founding-era ambiguity or confusion about.

      1. That ought to be fairly obvious from the Constitution itself, they specified in fairly significant detail what the legislature is but were comparatively lax when it came to the executive and judiciary.

        1. Originalists aside, not much is clear at the operational level in the Constitution’s sweeping language.

          ‘The Executive power’ is not clear at all.

      2. ” it’s hard to argue the judicial power was assumed by all to encompass what Marbury built it into.”

        Assumed by all? Of course not. But assumed by many, if not most, as evidenced by the fact that the general result of Marbury being a collective yawn rather than an attempt to remove the Chief Justice and as many Associate Justices as seemed necessary to root out this “judicial review” nonsense.

        1. Jefferson did try and remove a Justice, but was stalled by Congress (after he had wined and dined them, lol). I don’t recall if it was before or after Marbury but regardless, I think the boundaries took some time to shake out back in those early days.

          I largely like what they came up with from a practical perspective, but for those invoking originalism as the way and the truth, this seems a facile version of events.

    2. “And the big one; Congress can impeach and they try the President.”

      Then again, in over two centuries of practice, there have been only two impeachments and zero convictions. Suggesting that impeachment is something to talk about rather than something that has any actual effect.

      1. Impeachment is Herbert’s fleet in being. It always has an effect, even while resting at anchor.

        1. Fine. Revise the above text to read “Suggesting that impeachment is something to talk about rather than something that has any observable effect.”

  2. The text of the Constitution fairly clearly divides the power of the federal government. They don’t actually spell out why, but the obvious answer is that the colonists had direct experience with an UNdivided government in the form of the English monarchy, and found it not to their liking.

    The three branches are divided according to the time-frames in which they operate… the Congress is empowered to handle the normal range of operations. This allows time for consultation and consideration of different opinions from different regions of the country before enacting (or attempting to enact) any legislation. For things which need to be handled in a shorter time frame, the executive branch is there. No need to convene the Congress if enemy ships begin disgorging foreign troops onto American beaches, the President has the authority to act in the immediate to defend the nation against foreign invasion but notably does not have the authority to entangle us in foreign adventures… declaration of war is a power reserved to the Congress.
    For longer term issues, there is the Court. The Court interprets and applies the laws once they have been made by the Congress, and, although it isn’t specified in the text, has the power to nullify statutes that are contrary to the Constitution and to nullify executive actions that are beyond the scope of authority, as well.

    The challenge is that the speed of communication and transportation have both substantially improved since the Founding, which has had the effect of moving more and more into the “immediate” time-frame that once would have been in the intermediate or long-term domains of the other branches.

  3. The biggest implication of this theory would seem to be one that the author didn’t mention — administrative law. As it is today, all or nearly all administrative-law agencies are part of the executive branch, yet they write regulations by the boatload. If, as the author believes and so do I, the executive branch has no legitimate power to legislate, then every word of the Code of Federal Regulations is invalid on its face.

    1. I think you might have noticed that the judiciary, as a whole, seems inclined to consider the CFR as valid. If the necessary result of your line of reasoning is clearly false, it suggests that at least one of your premises is invalid.

    2. Is that clear? Indeed, the view that the executive power is nothing but to make choices implicit in the rules promulgated by the legislature would seem to SUPPORT the idea that the legislature has the power to delegate a smaller or larger amount of implementation choices to the executive. Administrative rules are merely a legislative choice to delegate a great deal of leeway to executive to decide implementation.

      1. The legislature has always had the chance to choose between the words “may” and “must”.

  4. My interpratation of what you said is that this would (if anything) expand the ability of the legislature to delegate choices (admin law) to the president. After all the executive is nothing but a branch dedicated to making implementation decisions for legislative dictates.

    I mean if the legislature can in theory specify every last detail but can choose to leave some of that to the executive it stands to reason they could choose to leave a huge amount of discretion.

    But other people seem to reach the opposite conclusion (see above). Do you have a view?

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