Constitution 101: Executive Power

Article II of the Constitution defines the role and qualifications of the president.

As it does for Congress, the Constitution delegates specific powers and responsibilities to the executive branch – the power of appointment, the power to make treaties with the advice and consent of Congress, veto power, etc.

These specific powers are relatively clear and unambiguous. But a question remains: does the president enjoy other non-specified powers as chief executive.

The so-called vesting clause leaves this question up for debate.

The executive Power shall be vested in a President of the United States of America.”

Many modern legal scholars claim this clause grants broad, unspecified “executive” authority to the president. They point to the difference in wording between the vesting clause for Congress in Article I and the executive branch vesting clause in Article II to make their case.

All legislative Powers herein granted shall be vested in a Congress of the United States”

Proponents of broad executive power claim the omission of the words “herein granted” in the presidential vesting clause infers a broader delegation of authority, whereas Congress remains limited to the enumerated powers in Article I Sec. 8.

The idea that the vesting clause delegates broad, undefined powers to the president presents several interpretive problems.

Proponents of a narrow reading argue repeating the words “herein granted,” in Article II would be redundant, and if a broad grant of authority was intended, the further enumeration of presidential powers following would be superfluous. This would violate standard rules for drafting legal documents in place at the time.

As constitutional scholar Rob Natelson explains in his book The Original Constitution: What it Actually Said and Meant, framers of legal documents conveying powers in the late 1700s followed a well-established pattern.

  1. Designation
  2. Organizational details
  3. Enumerated powers

Most colonial charters, the king’s commissions granting power to colonial governors, the Articles of Confederation and several pre-1787 state constitutions followed this pattern. But if the first section of Article II serves as a broad vesting clause in the sense modern scholars claim, it presents a totally new and unique structure, fitting no earlier precedent. As Natelson put it, “An interpretation that fits prevalent drafting customs is far more likely.”

More importantly, a broad grant of undefined power to the president runs completely counter to the spirit of the Constitution. As James Madison put it in Federalist #45, “The powers delegated by the proposed Constitution to the federal government are few and defined.”

“Executive power” was not specifically defined in the founding era. It was a general term. Executive officers in the British and colonial systems exercised varying levels of authority and operated within different spheres depending on the particular office. There existed no list of specific executive powers common to all executive roles anybody could point to. Therefore, the term “executive power,” standing alone, has no real meaning.

It follows we should read the vesting clause as merely a general designation of the president’s role, further defined by the delegated powers that follow, not as a general grant of power. It is simply unthinkable that the founding generation would have imbued the president with a vast pool of undefined powers to exercise and define as he saw fit.

The British colonial governors ruled with just this kind of power. The founding generation would have no more of that. As the people of the states began to draft their own constitutions in 1776, they placed very little power in the executive branches.

In his book Creation of the American Republic, historian Gordon S. Wood put it this way.

The Americans, in short, made of the gubernatorial magistrate a new kind of creature, a very pale reflection indeed of his regal ancestor. The change in the governor’s position meant the effectual elimination of the magistracy’s major responsibility for ruling the society – a remarkable and abrupt departure from the English constitutional tradition.”

Americans feared the arbitrary power they so often saw exercised by magistrates in the past. And as Wood put it, “only a radical destruction of that kind of magisterial authority could prevent the resurgence of arbitrary power in their land.”

John Sullivan served as a general in the American Revolution, and later as governor of New Hampshire and a federal judge. He took a break from fighting in the winter of 1775 to pen a letter to Meshech Weare outlining his thoughts on forming a new state government He warned against vesting too much power in a single person.

And here I must beg leave to observe that, however high other people’ s notions of government may run, and however much they may be disposed to worship a creature of their own creation, I can by no means consent to lodging too much power in the hands of one person, or suffering an interest in government to exist separate from that of the people, or any man to hold an office, for the execution of which he is not in some way or other answerable to that people to whom he owes his political existence.”

This mentality certainly carried over into the drafting of the Constitution, and we should read Article II in that light.

Tucker outlined executive authority in this limited sense in View of the Constitution of the United States.

The powers, or more properly, the duties, of the president of the United States are various and extensive; though happily abridged of many others, which are considered as inseparable from the executive authority in monarchies: of these last, we have had frequent occasion to notice such as are transferred by the constitution to the congress of the United States; and of those which are assigned to the president…

Tucker goes on to list the duties specifically delegated in Article II Sec. 2 and 3, and he offers no hint that any additional, broadly defined “executive powers” exist.

Within the constitutional structure, the president lacks any authority whatsoever to issue edicts, write rules and regulations, or legislate in any manner. In an essay known as “Helvidius” Number 1, James Madison clearly states the president’s power extends only to putting existing law into effect.

The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must pre-suppose the existence of the laws to be executed.”

Modern presidents exercise powers far beyond those delegated to them in the Constitution and constantly usurp legislative authority. Much of the blame lies with Congress. It often delegates legislative authority to the president by writing vague, open-ended laws that expand executive authority into the legislative realm. Congress’ delegation of war powers to the executive branch provides one of the best examples.

In the American system, Congress should serve as the most powerful branch, as it most directly represents the people. Instead, America has evolved into a system very much like the one the revolutionaries sought to destroy.

Tags: , ,

Trackbacks/Pingbacks

  1. Thoughts from Maharrey Head #28: The Constitutional Limits of Presidential Power | Michael Maharrey - January 9, 2016

    […] Constitution 101: Executive Powers […]

Leave a Reply

%d bloggers like this: