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

The Whig conception of executive power has appeared in debates about Article II throughout American constitutional history.

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The preceding post explained how executive discretion can arise even though executive power itself does not confer any. Familiar forms of supposedly inherent executive power thus can have sources other than the executive power itself.

This concluding post begins by examining two other forms of often-asserted presidential authority that are frequently ascribed to the executive power: executive privilege against demands for information, and presidential authority to direct the executive branch (the principle of the unitary executive). I will question the first and endorse the second, while arguing that the executive power is not the place to look for either one. The post will then briefly discuss two noteworthy appearances of the Whig conception of executive power in the long debate over Article II.

Presidents sometimes claim a privilege not to comply with otherwise-valid demands for information from Congress or the courts. Whether the Constitution itself secures any such privilege for the President or other executive officials is in my view doubtful. I think it more likely that rules of privilege are a proper subject for Congress' power to carry other constitutional powers into execution (the horizontal necessary and proper power). If the Constitution creates such privileges, however, they are not part of the executive power itself. Rather, they arise from an implicit principle that weighty decisions can be made properly only if the decision-maker can have candid advice. That principle applies to vetoes and treaties and pardons and any discretion that the applicable rules give to implementing officials. It applies to courts as well as to the executive. Privileges (and protections from tort and criminal liability, if there are any) rest on a structural inference from decisional authority in general, not from the executive power in particular.

In treating the President and the executive branch more or less interchangeably, I have followed the principle of the unitary executive, to which I subscribe. Article II vests the executive power in the President, and contemplates that the government will include many other executive officials, such as the heads of departments, which are mentioned. Those two features of the Constitution together imply a principle of presidential primacy with respect to the administration of the law, a civilian version of the President's status as commander in chief. In my view, the Constitution does not dictate the exact form of that primacy. I do not think that it mandates plenary presidential removal authority. An obligation of subordinates to comply with valid orders, combined with some enforcement of that obligation, would also be consistent with the principle of presidential primacy. The important point is that, one way or another, the President is the boss.

Although that conclusion can be derived from the executive power, it need not be and I think should not be. The argument that removal or supervision is inherently executive is of course almost as old as the Constitution. Presidential control, whether through removal or otherwise, might derive from the vesting in the President of the executive power. I think, however, that it derives from the vesting in the President of the executive power. Presidential primacy in carrying out the laws comes from the vesting of executive power primarily in the President and only secondarily in other officials. In a sense, control of administration, however exercised, is a presidential power rather than an executive power. It arises because the Vesting Clause of Article II establishes a unique and supreme place for the President among the officials who administer the government and carry out the law.

In elaborating the Whig conception, and urging it as the original meaning, I do not deny that it had competitors at the time of the framing and has had competitors ever since. It is important to see that it has always been one of the entries in this long-standing debate. I will offer two leading examples.

An early appearance, perhaps surprisingly, is in Hamilton's justification for the Neutrality Proclamation in Pacificus No. 1. After arguing for unenumerated executive powers (in the plural), Hamilton offered as a back-up the principle that simply in order to administer the government and carry out the law, the President must make legal judgments. In performing that narrow executive function, he may have to decide whether the country is neutral or at war. Hamilton understood that many of his readers would be much more comfortable with the Whig conception than with the intimations of prerogative for which Madison promptly called him a monarchist.

Perhaps the most important 20th century exposition of the Whig conception came at the mid-point. As Professor Henry Monaghan has pointed out, Justice Black's opinion for the Court in Youngstown Sheet & Tube Co. v. Sawyer rests on the Whig understanding. Justice Black stressed that the President is not a legislator. That matters because of a principle so basic that Justice Black did not make it wholly explicit: the executive power itself brings no ability to make or change legal rules, so executive officials are bound by the law, including private rights.

Justice Black's opinion in Youngstown is a good place to conclude. It rests on the principle that executive power is limited to the ability to use the material and juridical assets of the government to achieve the goals of the government, subject to affirmative and negative duties created by the applicable rules. Executive officials are bound by those rules, and the executive power by itself brings no ability to make or change them. That is the rule of law.

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  1. Without hesitation, I agree with the the first portion of the argument: “Rather, [a privilege not to comply with otherwise-valid demands for information from Congress or the courts] arise[s] from an implicit principle that weighty decisions can be made properly only if the decision-maker can have candid advice.”

    To be sure, Art. II Sec. 2 has granted to the executive the explicit power to request and received candid advice and the related implicit principle has always been known. As another example, in a memorandum to Walter Jones dated March 5, 1810, Jefferson writes “The ordinary business of every day is done by consultation between the President and the Head of the department alone to which it belongs. For measures of importance or difficulty, a consultation is held with the Heads of departments, either [option A] assembled, or [option B] by taking their opinions separately in conversation or in writing. The latter [option B] is most strictly in the spirit of the constitution. Because the President, on weighing the advice of all, is left free to make up an opinion for himself. In this way they are not brought together, and it is not necessarily known to any what opinion the others have given. This [option B] was General Washington’s practice for the first two or three years of his administration” and represents a method calculated “to prevent collision and irritation, and to cure it, or at least suppress its effects when it has already taken place.”

    On the second part of the argument, I certainly agree that “Executive officials are bound by […] rules, and the executive power by itself brings no ability to make or change them;” yet I appreciate the fluidity of thought expressed by the Chief Justice in Little v. Bareme.

  2. Part of the reason the executive exists is because of problems encountered during the brief period the country existed under the Articles of Confederation. The problem was then that communication and transportation were rather slow. Convening Congress to respond to an emergent situation could take months… adequate for some problems, but not for some others. Someone had to have authority to act while the convening and deliberating took place.

    The initial solution was that the legislature would select from their number some individuals who would have power to act until the full body could be re-assembled. The authority to act would be a power of the body as a whole, delegated to a specific individual or small group of individuals, determined at will by the legislature as a whole. Note that the power was not inherent in the individual, but entirely delegated by legislative choice. This proved ineffective, so the executive was granted inherent powers, separate from the legislative, when the Constitution was drafted to replace the Articles. There were other changes, as well, such as granting the federal government the authority to lay and collect taxes instead of being 100% reliant on state governments for funding.

    This leads to a natural division of power along timeliness… the legislature handles matters that require deliberation, while the executive handles matters that require immediacy of action.

    This division has led to an increasingly powerful Presidency because the technological improvements in communication and transportation places more things in the “requires immediate action” bin, taking them out of the “go ahead and deliberate about this one for a while before we need any kind of decision” bin.

    So we borrowed an idea the Chinese really developed, the bureaucracy. All the important decisions are made in advance, and then functionaries simply apply the decisions already made to circumstances

    Poof! There you have it, the modern administrative state.

  3. “and presidential authority to direct the executive branch”

    If there is no discretion involved in directing the executive branch then why does the senate have to provide advise and consent for officers of the United States?

    That’s like saying that prosecutors don’t need discretion because congress made the law clear enough to execute without discretion.

    1. The question is whether or not the President can direct lesser officers not to do things that Congress has ordered them to do.

      On the one hand, the executive branch is supposed to carry out legislation. On the other hand, part of the reason the power of the federal government is divided into three branches is that pitting the parts of the government against itself prevents it from acting in tyrant-like fashion, unlike, say, a unitary monarch.

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