The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Executive Power Was an Empty Vessel
The three functions of a "complete" government. [UPDATE: This is Julian Mortenson's post, but I erroneously posted it at first under my own byline -- sorry about that!]
My last post showed that, at least on Madison's bookshelf, the executive power meant the power to execute the law. As "Article II Vests the Executive Power, Not the Royal Prerogative" goes on to demonstrate, everyone understood that power to be both subsequent and subordinate. In fact, until there were legislative instructions to implement, executive power was just an empty vessel. Unless the Founders suddenly and totally abandoned the ordinary meaning of the term, the Executive Power Clause was conceptually incapable of serving as a source of independent substantive authority.
At bottom, the empty vessel point is simple. It relates to the standard eighteenth-century trope of a "perfect" or "complete" government. Modern scholars have sometimes misunderstood such references as a gesture toward the police power. That's wrong. When the Founders talked this way, they weren't referring to morality, beauty, or jurisdictional competence. Rather, they meant the idea of government action as a three-part functional sequence: successive exercises of what "Cato" was typical in calling "legislative, judicial, and executive power." A government couldn't be "complete" unless it had all three powers with respect to each subject matter competence over which it had jurisdiction.
As "A Bostonian" explained, that's because these "three grand immutable principles in good government" were logically intertwined. Legislative action was the formulation of political intent in the form of operational instructions. Judicial action (sometimes viewed as a subset of its executive sibling) was the impartial assessment of how legislated instructions should apply to particular circumstances. And executive action was the active implementation of legislated instructions in the real world. Each was indispensable to a coherent whole. "A Bostonian" was typical in observing that these functional powers of government "so intimately depend upon each other, that it is an absurdity in terms to give the name to any constitution where they are not in complete and uniform action."
Let David Hume stand for a long list of commentators in explaining the logical consequences: "The executive power in every government is altogether subordinate to the legislative." Note the formulation: in every government. This was not a contingent point about parliamentary sovereignty. Nor was it otherwise grounded in the particular constitutional law of England. Hume was making a conceptual and thoroughly generalizable point about the relationship between legislation and execution. It was thus a commonplace for Gad Hitchcock's famous 1774 election day sermon to observe that "the executive power is strictly no other than the legislative carried forward, and of course, controllable by it."
The point was common ground across the ideological spectrum. The most radical republicans agreed with Rousseau that "the executive power … is only the instrument for applying the law." The most committed divine rights theorists agreed with Filmer that "[w]hen the law must rule and govern the monarch, and not the monarch the law, he hath at the most but a gubernative or executive power." And the likes of Edmund Burke scolded those who "mistake the condition of a King of Great Britain" as "an executive officer." To the contrary, Burke insisted, the English monarch "is a real King," concerned with must more than just "contemptible details."
As I'll discuss in a later post, Burke and Filmer's disdain for the executive power was unwarranted. But their point reflects an uncontested universal understanding. The only thing conveyed by "the executive power" was the empty-vessel authority to execute instructions issued by a valid exercise of legislative authority. Without the latter, the former had nothing to do.
[For all the posts in this series, click here.]
