THE EXECUTIVE POWER CLAUSE.

• Date: 01 April 2020
• Author: Mortenson, Julian Davis

INTRODUCTION 1271 I. THREE VIEWS OF THE EXECUTIVE POWER CLAUSE 1274 II. MAPPING THE ARTICLE II SETTLEMENT 1279 A. America in Crisis 1279 1. The Critical Period 1280 2. The Execution Problem 1283 B. The Presidency's Role in the Constitutional Solution 1296 III. "THE EXECUTIVE POWER" MEANT THE POWER TO EXECUTE THE LAWS 1305 A. The Power to Execute the Laws Was Essential to a Complete 1306 Government 1. Law Is Meaningless Without Execution 1306 2. Executing Laws Was the Defining Function of the Article 1309 II Article B. The Constitutional Term for this Power to Execute Laws 1310 Was "The Executive Power" 1. The Root and Cognates of the Term 1311 2. "The Executive Power" Meant "The Power to Execute" 1315 3. "The Executive Power" Was the Hallmark of a 1319 "Complete" or "Perfect" Government C. The Executive Power Was Often Viewed as Either 1325 Logically Entailing or Functionally Implying the Appointment of "Assistances" D. "The Executive Power" Was Unanimously Understood as an 1334 Empty Vessel, Both Subsequent and Subordinate in Character 1. As a Form of Agency Authority, the Exercise of 1334 Executive Power was Fully Subordinate to Instructions by its Legislative Principal 2. Executive Authority Was Immensely Potent, Especially 1340 When Its Holder Could Influence the Exercise of Legislative Power to Convey Broad Delegations of Authority and Discretion IV. "THE EXECUTIVE POWER" WAS NOT ANOTHER WORD FOR 1345 ROYAL PREROGATIVE A. The Royal Residuum is Facially Implausible 1346 1. Its Politically Implausible 1346 2. Its Doctrinally Implausible 1348 B. The Royal Residuum Was Expressly Rejected 1350 1. They Knew Exactly What a Residuum Structure 1350 Looked Like 2. They Repeatedly Denied that Any Such Residuum 1353 Existed in Article II C. A Play Park of Silent Dogs 1358 CONCLUSION 1365 INTRODUCTION

Article II of the Constitution vests "the executive power" in a President of the United States. (1) The text of the provision is plain-spoken, even underwhelming at first glance. And yet what it meant to the founders is "one of the most important questions of any kind, on any subject, under the Federal Constitution . ..." (2) This Article aims to resolve the historical debate. For the founders, "the executive power" meant the power to execute the law. Nothing more. And nothing less.

For the uninitiated, this conclusion may seem obvious on its face. And yet the meaning of the Executive Power Clause is not just immensely important; it is also "one of the most contested questions in constitutional law." (3) Broadly speaking, there are three interpretations. (4) First, the cross-reference thesis. On this view, the clause has no standalone content; it simply refers to the more specific powers listed later in Article II, from the power to appoint officers to the power to receive ambassadors. Second, the law execution thesis. On this view, the clause grants the power to execute the laws and is otherwise an empty vessel until it has legislative instructions to carry out. Third, the royal residuum thesis. This last view reads the Executive Power Clause as granting all the powers typically possessed by an eighteenth-century "executive"--with the British Crown as the presumptive referent--except as specifically reallocated or prohibited elsewhere in the document.

It's hard to overstate the consequences of this dispute. The least aggressive version of the royal residuum reads the Executive Power Clause as a defeasible power authorizing the president to take any action he deems necessary in the realm of national security or foreign affairs, so long as neither the Constitution nor any specific statute forbids it. (5) The most aggressive version reads it as indefeasible: that is to say, if it's the sort of thing the eighteenth-century British Crown could presumptively have done, then nothing short of the Constitution itself can stop our American President from it too. (6) This has consequences of the highest order for real-world disputes ranging from the seizure of steel mills (7) to the torture of suspected terrorists. (8) On the defeasible version, the President might be able to engage in dragnet surveillance to gather intelligence on organizations associated with al-Qaeda, so long as statutes that authorize wiretapping only in more limited forms don't expressly prohibit its use in war. (9) On the indefeasible version, the President might be able to bomb Syria for gassing its own civilians so long as he doesn't purport to formally declare "war." (10)

You don't have to be an originalist on questions like these to understand that it's immensely important to get the historical meaning right. For one thing, even those who think constitutional meaning evolves--clap your hands if you believe in precedent!--understand that original meaning is often one of the things worth having in view. For another, a great many constitutional interpreters are indeed committed originalists," ready to give sufficiently well-established original meaning not just significant but conclusive interpretive weight. And so what follows is valuable not only as history but as a source of guidance for some of the most important questions in a modern democracy.

This Article shows that the founders understood the opening sentence of Article II to vest exactly what it said: the power to execute the law. This essential element of governance comprised two core components: the authority to enforce private compliance with the law's negative prohibitions, and the authority to carry out projects assigned by law's affirmative authorizations. (12) Many founders thought the executive power also either functionally implied or logically entailed the authority to appoint "assistances" for its implementation. (13) The Executive Power Clause thus represented an incredibly potent delegation to an incredibly important official. Indeed, the power it vested may have been the Constitution's single most controversial innovation--and not for lack of competition. (14)

The signal characteristic of executive power, however, was that it was substantively an empty vessel. The only thing the clause authorized the President to do was to carry out legal instructions created pursuant to some other authority. This fundamentally derivative characteristic meant that executive power was incapable of serving as even a defeasible source of independent substantive authority, let alone one that would be immune to legislative revision. (15) While the founders disagreed vehemently about a great many questions relating to the separation of powers generally and the President specifically, this issue prompted no debate at all. The executive power meant the power to execute. Period.

The Article proceeds as follows. Part I summarizes the current state of the scholarship. Part II explores the founders' competing visions of the presidency and the gradual emergence of a negotiated compromise between the imperatives of vigor and safety. Part III focuses on the Executive Power Clause as the central piece of that compromise, and shows that it vested the empty-vessel power to execute law. Part IV shows that the founders repeatedly rejected the concept of a royal residuum. The Conclusion sketches some implications of this research.

1. THREE VIEWS OF THE EXECUTIVE POWER CLAUSE

   There are at least three ways to understand Article IPs reference to the executive power. (16) The first is what I will call the "Cross-Reference" theory, which understands "the executive power" as a content-free referent to the rest of Article II. This thin reading of the Executive Power Clause has been embraced by Supreme Court justices, (17) national legislators, (18) and a number of academics. (19) On this view, the term is a convenient lexical handle for a grab bag of powers. The full contents are set out in the remainder of Article II. And nothing else goes in the bag. While this approach reads the Executive Power Clause as substantively prefatory, it does leave the clause with one significant job: clarifying that the listed powers belong to the President and no one else.

   The second understanding, which I will call the "Law Execution" theory, gives the opening clause its own independent substantive content. On this view--which has found support among Presidents, (20) Supreme Court justices, (21) and scholars (22)--"the executive power" is exactly what it sounds like: the power to execute the law. The executive power, thus, authorizes the President to bring that law--which before execution exists only on paper--into effect in the real world. Sometimes this might mean coercing obedience from private parties, like ticketing jaywalkers. Other times it might mean implementing an affirmative project of the legislature, like picking up the garbage. Either way, the executive power authorizes the President to connect legal imperative to physical reality: "Interpreting a law enacted by Congress to implement the legislative mandate," the Supreme Court tells us, "is the very essence of 'execution' of the law." (23) And no other provision of the Constitution gives it to the President as an affirmative enforcement authority rather than as the compliance obligation imposed by the Take Care clause. (24) The third understanding is what I will call the "Royal Residuum" theory. Advocates of this theory claim that "[b]ecause supreme executives in [many] countries had a similar basket of powers, it became common to speak of an 'executive power' that encompassed an array of powers commonly wielded by monarchs." (25) Here's a typical modern description of what went in the basket:

   Traditionally, the "executive power" was understood at the time of the framing as including the power of war and peace, and all external relations of the nation .... [T]he President was left with whatever remained of the traditional "executive power" in matters of war, peace, and foreign affairs, diminished to a significant extent, but not completely, by the re-allocation of...