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The Executive Power Clause ARTICLE THE EXECUTIVE POWER CLAUSE JULIAN DAVIS MORTENSON† Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth- century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security. This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives—including records of drafting, legislative, and ratication debates, committee les, private and ocial correspondence, diaries, newspapers, pamphlets, poetry, and other publications—this Article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive armative account of the clause that is both historically and theoretically coherent. † James G. Phillipp Professor of law, University of Michigan. Thanks to Nick Bagley, Josh Chafetz, Reece Dameron, Jo Ann Davis, Brian Finucane, Louis Fisher, David Gerson, Jonathan Gienapp, Monica Hakimi, Jason Hart, Don Herzog, Kian Hudson, Daniel Hulsebosch, Rebecca Ingber, Andrew Kent, Gary Lawson, Marty Lederman, Tom McSweeney, Henry Monaghan, Bill Novak, David Pozen, Richard Primus, Daphna Renan, Jed Shugerman, Matt Steilen, Valentina Vadi, Matt Waxman, John Witt, Ilan Wurman, and Mariah Zeisberg, as well as participants in the Georgetown Law School Legal History Workshop, the Hofstra Law School Faculty Workshop, the Hugh & Hazel Darling Originalism Works-in-Progress Conference, the McGeorge School of Law Faculty Workshop, the Michigan Law School Governance Workshop, the University of Michigan Legal History Workshop, and the University of Michigan Atlantic History Seminar, for helpful comments on earlier drafts. I am especially grateful to the Michigan Law students who have contributed to this project as research assistants, including Walter Allison, Abdullah Alzamli, Matt Arrow, Nina Cahill, Lee Crain, Jackson Erpenbach, Rachel June-Graber, Philip Hammersley, Jack Heise, Betsy Johnson, Kurt Johnson, Adam Kleven, Andrew Lanham, Ryan McCarty, Gillian McGann, Julia Potter, Brian Remlinger, Hanna Rutkowski, Jesse Schupack, Adam Shniderman, Casey Thomson, and Ingrid Yin. () University of Pennsylvania Law Review [Vol. : The Founding generation understood “executive power” to mean something both simple and specic: the power to execute law. This authority was constitutionally indispensable, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some prior exercise of legislative authority. It wasn’t just that the use of executive power was subject to legislative inuence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing. INTRODUCTION ........................................................................... I. THREE VIEWS OF THE EXECUTIVE POWER CLAUSE ................ II. MAPPING THE ARTICLE II SETTLEMENT ................................ A. America in Crisis ...................................................................... . The Critical Period .......................................................... . The Execution Problem .................................................... B. The Presidency’s Role in the Constitutional Solution ....................... III. “THE EXECUTIVE POWER” MEANT THE POWER TO EXECUTE THE LAWS .............................................................................. A. The Power to Execute the Laws Was Essential to a Complete Government ............................................................................. . Law Is Meaningless Without Execution ............................ . Executing Laws Was the Dening Function of the Article II President ...................................................................... B. The Constitutional Term for this Power to Execute Laws Was “The Executive Power” ...................................................................... . The Root and Cognates of the Term .................................. . “The Executive Power” Meant “The Power to Execute” ..... . “The Executive Power” Was the Hallmark of a “Complete” or “Perfect” Government ................................ C. The Executive Power Was Often Viewed as Either Logically Entailing or Functionally Implying the Appointment of “Assistances” ........................................................ D. “The Executive Power” Was Unanimously Understood as an Empty Vessel, Both Subsequent and Subordinate in Character .................... . As a Form of Agency Authority, the Exercise of Executive Power was Fully Subordinate to Instructions by its Legislative Principal. ........................................................ . Executive Authority Was Immensely Potent, Especially When Its Holder Could Inuence the Exercise of Legislative Power to Convey Broad Delegations of Authority and Discretion .................................................. ] Executive Power Clause IV. “THE EXECUTIVE POWER” WAS NOT ANOTHER WORD FOR ROYAL PREROGATIVE ............................................................. A. The Royal Residuum is Facially Implausible .................................. . It’s Politically Implausible ................................................. . It’s Doctrinally Implausible ............................................... B. The Royal Residuum Was Expressly Rejected ................................. . They Knew Exactly What a Residuum Structure Looked Like .................................................................... . They Repeatedly Denied that Any Such Residuum Existed in Article II .......................................................... C. A Play Park of Silent Dogs ......................................................... CONCLUSION ............................................................................... 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 rst 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 specic powers listed later in Article II, from the power to appoint ocers 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 specically reallocated or prohibited elsewhere in the document. 1 U.S. CONST. art. II., § . 2 Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, B.U. L. REV. , (). 3 Michael McConnell, The President Who Would Not Be King (unpublished manuscript) (on le with author). 4 For a full description of these positions and their consequences, see infra Part I. University of Pennsylvania Law Review [Vol. : 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 aairs, so long as neither the Constitution nor any specic 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 mills7 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 5 See
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