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

The Whig conception of executive power was familiar to the Federal Convention, and that conception matches the convention's decisions regarding the executive as reflected in the Constitution's drafting history.

|The Volokh Conspiracy |

This post discusses the Whig executive and the available records of the Constitution's drafting history.  Those records show that the delegates were familiar with the limited understanding of executive power.  They also support the conclusion that the delegates wanted to give the President that limited form of the power, and drafted accordingly.

On May 29, 1787, Edmund Randolph presented to the Federal Convention several resolutions on behalf of the Virginia delegation.  Two are critical to understanding the Constitution's executive power.  One proposed to confer on a new "National Legislature" the "legislative rights" then given to Congress by the Articles of Confederation.  The other gave a new "National Executive" a "general authority to execute the national laws" and also "the executive rights vested in Congress by the Confederation."

On June 2, the Convention turned to the national executive.  According to Madison's notes, the younger Pinckney of South Carolina stated his support for a vigorous executive, but feared that the powers in the resolution would include peace and war, which would create an elective monarchy.  John Rutledge of South Carolina opposed giving the executive the powers of peace and war.  Roger Sherman of Connecticut said that the executive should be chosen by the legislature, because "he considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect."

James Wilson of Pennsylvania then propounded a Whig-type limited conception of executive power.  He "did not consider the prerogatives of the British monarch as a proper guide in defining the executive powers.  Some of these prerogatives were of a legislative nature.  Among others that of war & peace etc.  The only powers he conceived strictly executive were those of executing the laws, and appointing officers, not {appertaining to and} appointed by the legislature."  (Braces indicate Madison's later emendations.)  After some back and forth, the Convention modified the resolution along the lines Wilson supported.  It deleted reference to the executive rights of Congress, and gave the new national executive "power to carry into effect. the national laws. to appoint to offices in cases not otherwise provided for."

Wilson wanted and got a chief magistrate who would carry out the laws but not have Congress's "executive rights."  (As Wilson's later Lectures on Law show, he had a worked-out view of the Whig executive power.)  How could it make sense to have an executive without executive rights?  Very likely because of a crucial ambiguity in many uses of "executive" that derived from British practice.  The King was chief executive: he administered the government.  He had many other powers too, like deciding on war and peace and making treaties.  Powers of the executive, or executive rights, might mean the powers of the officer in the British system who held the power to carry out the law, including other powers that person held.  Deciding on war was an executive power in that sense but was not within the executive power in Wilson's sense.  When the delegates rejected the grant of Congress's executive rights, they decided not to use the powers of the British chief executive as the model of theirs.

Deliberations in the Convention continued through June and July, but the delegates did not reconsider their June 2 vote on the powers of the executive.  At the end of July, the Convention committed its decisions up to that point to the Committee of Detail, which was to produce a draft constitution.  Wilson served on the committee and was probably its scribe.

The Committee of Detail made a verbal change of considerable importance.  Instead of creating an officer called "the executive," and giving that officer stated powers, the committee adopted the approach now found in Article II.  It created an officer called the President and gave that officer "the executive power."  Although the move did not completely clear up the ambiguity associated with "executive," it did move the text in Wilson's direction.  Calling an officer a President says nothing about the officer's powers, so those powers must be separately granted.  If the executive power is one but only one of them, that suggests that it is the narrower power to carry out the laws and not the broader collection held by the British officer who performed that function and also, for example, could give pardons.  "The executive" in the British system was unquestionably the monarch, but the "executive power" could refer to only the narrow Whig-type authority, and Wilson at least thought that it did.

Later decisions by the convention increased the power of the President, notably with respect to treaties, but did not affect the executive power.  The ultimate form of Article II's vesting clause is a slightly modified version of the Committee of Detail's proposal.  As I have argued, its text and the Constitution's tripartite system of powers indicate that the clause uses Wilson's conception of executive power.  The Convention's decisions (which are much better documented than its debates) indicate that the delegates' goal was to create a President with the Whig executive power and some additional authority, like making treaties, that had been part of the King's non-executive power.

In September, the Convention referred its nearly-completed work, based on the report of the Committee of Detail, to the Committee of Style and Arrangement.  The latter committee produced the now-familiar version of the Vesting Clause of Article I, which has figured in debates about Article II.  Article I gives Congress "all legislative powers herein granted," while Article II gives "the executive power."  Proponents of a more-than-Whig executive power, like Alexander Hamilton as Pacificus, have relied on the contrast.  The President, they argue, has all executive powers, enumerated and unenumerated, not only those herein granted.

Whether the Committee of Style, or at least Gouverneur Morris of that committee, meant to facilitate that reading is one of the great questions about the Federal Convention.  If the committee had that plan, it was not in response to a recorded choice made by the convention as a whole, like the choice to reject the Virginia Plan's grant of "executive rights."  Whatever the committee's plan may have been, the inference from the contrast between the two Vesting Clauses to a non-Whig executive power is weak.  The King had many powers, and so in Britain there were many powers of the executive, but there is only one executive power.  It may seem multiple because it can interact with all kinds of legal rules that it implements, but in all those interactions it remains itself: the capacity to use the resources of the government to pursue the goals given by the law, subject to the constraints found in the law.  Article II confers no unenumerated executive powers, because like the executive branch, the executive power is unitary.  That power, the capacity to carry out the law, is the executive power James Wilson wanted to give the new chief magistrate.  Wilson proposed that understanding, and there is good reason to conclude that the delegates in general agreed with him and approved language that implemented that decision.