Reviving Liberal Constitutionalism With Originalism in Emergency Powers Doctrine

AuthorJerry Dickinson
PositionAssociate Professor of Law, University of Pittsburgh School of Law
Pages203-231
Reviving Liberal Constitutionalism With
Originalism in Emergency Powers Doctrine
Jerry Dickinson*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
I. EMERGENCY POWERS THEORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
A. Absolutist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
B. Relativist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
C. Liberal Constitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
D. Emergencies and Executive Authority . . . . . . . . . . . . . . . . . . 208
II. THE EXECUTIVE POWER: EXECUTE THE LAW AND NOTHING MORE . . . . . 212
A. Theories of the Executive Power Clause . . . . . . . . . . . . . . . . 212
1. The Cross-Reference Theory. . . . . . . . . . . . . . . . . . . . . . 212
2. Royal Residuum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
3. Law Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
B. Originalist Interpretations of the Executive Power . . . . . . . . 214
1. English Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . 214
2. Constitutional Interpretations . . . . . . . . . . . . . . . . . . . . . 216
III. ORIGINALISM, LIBERAL CONSTITUTIONALISM AND EMERGENCY . . . . . . . . . 217
A. Political Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
B. Doctrinal Implications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
INTRODUCTION
There are three primary theories that have shaped scholars’ understanding of
Article II’s Executive Power Clause. The first is the cross-reference, which points
to specific powers under Article II, such as the appointment power.
1
The second
is the Royal Residuum theory that interprets Article II as granting wide-ranging
powers possessed by the eighteenth-century British Crown-like executive offi-
cer.
2
And finally, the third is the Law Execution theory which rests on an interpre-
tation that the clause grants power to execute the laws and is otherwise an empty
vessel until it has legislative instructions to carry out.
3
American emergency
* Associate Professor of Law, University of Pittsburgh School of Law. Thanks to the Georgetown
Law Center’s JOURNAL OF NATIONAL SECURITY LAW & POLICY for inviting me to participate in the 2020
Symposium on Presidential Emergency Powers: Legal Framework and Perspectives for Reform.
Special thanks to Joshua Geltzer, Jamil Jaffer, and Mary McCord for a lively panel discussion. © 2021,
Jerry Dickinson.
1. See Julian Davis Mortenson, The Executive Power Clause, 168 U. PA. L. REV. 1269 (2020).
2. Id.
3. Id.
203
powers doctrine is historically premised upon the Royal Residuum theory, the
notion that Article II’s Executive Power Clause constitutes little, if any, limitation
on the broad grant of expansive powers to the President. As President Harry S.
Truman explained, [t]he Power of the President should be used in the interest of
the people and in order to do that the President must use whatever power the
Constitution does not expressly deny him.
4
In Youngstown Sheet and Tube v.
Sawyer, the government argued that there was an inherent emergency power in
the President that distinguished Article I from Article II.
5
This view purportedly
derives from the founding generation’s understanding of executive power as vest-
ing broad authority that extends further than merely, say, executing the laws.
Indeed, Alexander Hamilton insisted that the executive power was not restricted,
but instead conferred expansive powers.
6
This expansive view permits presidential action that is neither authorized nor
prohibited by Congress.
7
It also views presidential power in times of emergency
as indefeasible even when the executive exercises powers prohibited by
Congress.
8
It provides an extraordinary menu of discretionary policies to the
Executive in times of crisis. In fact, some former Supreme Court Justices have
rejected the view that [t]he broad executive power granted by Article II ... can-
not . . . be invoked to avert disaster.
9
Even the more moderate version of this the-
orem still envisions Article II’s Executive Power Clause as a non-absolute power
that provides the Executive wide-ranging power in times of emergency over
national security or foreign affairs, so long as neither the Constitution nor any
specific statute forbids it.
10
Scholarly, judicial, and political discourses have been dominated by the Royal
Residuum view, also known at the Vesting Clause Thesis, to broaden and
entrench the Executive’s power over foreign affairs and national security, includ-
ing emergencies.
11
Since the eighteenth century, this expansive interpretation of
the executive’s inherent powers during times of emergency has influenced deci-
sions by administration after administration over when and how to respond to
4. MARCUS CUNLIFFE, AMERICAN PRESIDENTS AND THE PRESIDENCY 343 (2d ed. 1976) (quoting
President Truman).
5. J. MALCOLM SMITH & CORNELIUS P. COTTER, POWERS OF THE PRESIDENT DURING CRISIS 135
(1960).
6. Alexander Hamilton, Pacificus No. 1, in THE PAPERS OF ALEXANDER HAMILTON 33, 38–40 (H.
Syrett eds., 1969).
7. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)
(defining Zone Two as presidential action). Justice Jackson set forth a tripartite test in his concurring
opinion, laying out three zones of Presidential power. Zone One is when Congress gives authority for the
President’s action. Zone Two is when Congress is silent, also known as the twilight zone. And finally
Zone Three is when Congress disapproves Presidential actions.
8. See id. at 637–38 (defining Zone Three).
9. Id. at 708 (Vinson, J., dissenting).
10. Mortenson, supra note 1, at 1272.
11. There are other sources of this expansive executive power that scholars and various
administrations have relied upon, including Article II’s Commander and Chief Clause, as well as the
Take Care Clause; see, e.g., Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal
Prerogative, 119 COLUM. L. REV. 1169, 1172–73 (2019).
204 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 12:203

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