Executive Power

• Author: Eugene V. Rostow
• Pages: 946-949

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Article II of the Constitution vests "the executive power" of the United States in the President, whereas Article I vests in Congress those legislative powers "herein granted," and Article III says that the JURISDICTION of the federal courts extends only to the subjects enumerated in the article. The common reader would normally construe these provisions to confer the entire executive power on the President, while granting Congress and the courts only parts of the legislative and judicial authority of the United States. As so often happens, however, the common reader has had a difficult time. From the first term of President GEORGE WASHINGTON, there has been a considerable debate over the scope of the President's executive power.

One party, labeled "Super-Whigs" by EDWARD S. CORWIN, views all the powers of the national government with grudging suspicion as necessary but distasteful restraints on the powers of the states or the people. For members of this party, the first principle of constitutional exegesis is that the Constitution provides limited and ENUMERATED POWERS that should be narrowly construed. They read the first sentence of Article II as a "mere designation" of the President's office and would confine the President's authority

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strictly to those examples of the executive power mentioned in the constitutional text: the VETO POWER, the power to receive ambassadors, the duty to execute faithfully the laws, and the others.

The other participant in the debate, the party of those who interpret law in the manner of JOHN MARSHALL, read the vesting clause of Article II as a grant to the President of a broad and independent range of authority to be defined historically and by the necessities of circumstance, and not limited to the powers and duties mentioned in the text. For this party, "the executive power" includes not only IMPLIED POWERS, but also the prerogative and emergency powers of the British Crown unless limited or denied to the President by the Constitution.

The issue has long since been settled by usage and by decisions of the Supreme Court in cases such as EX PARTE MILLIGAN, In re Neagle (1890), and IN RE DEBS (1895), but it continues to enjoy a half-life in the literature of the Constitution.

In his perceptive study, The Creation of the Presidency, 1775?1789, C. C. Thach, Jr. concludes that Article II admits "an interpretation of executive power which would give to the President a field of action much wider than that outlined by the enumerated powers." Thach has no doubt that this consequence of the text was contemplated and intended because the dominant force governing the CONSTITUTIONAL CONVENTION OF 1787 was not the theories of MONTESQUIEU and WILLIAM BLACKSTONE, popular as they were, but the experience of the state and the national governments between 1776 and 1787. To the majority of the founding fathers, led by JAMES WILSON, JOHN JAY, JAMES MADISON, and GOUVERNEUR MORRIS, the lesson of this experience was the danger of unbridled legislative power and the necessity for a strong and accountable national executive "to counterbalance legislative predominance. Neither theorist nor foreign model was needed to demonstrate that fact. The state legislatures' excesses and the incompetency of Congress as an administrative body produced the presidency." This is why Article I, section 6, forbids any member of Congress from holding an executive office during his or her term and why the Convention rejected several proposals that would have diluted the unity of the presidency or subordinated the office to a congressional committee.

Thach's judgment has been vindicated by the ebb and flow of history, despite the survival of a minority view favoring congressional supremacy. Upheavals of public opinion like those of the later stages of the VIETNAM WAR and the WATERGATE scandal caused the pendulum to swing more violently than usual in the direction of congressional power, but?thus far, at any rate?James Wilson's conception of the presidency has recovered from the vehemence of periodic congressional attacks and prevails in public opinion, governmental practice, and constitutional law.

The reasons for this pattern are simple, but fundamental: they correspond to functional necessity. Congress cannot conduct the day-to-day business of a vast government, the central task of the executive power. The size, history, and habits of Congress make it an...