The Essential Meaning of Executive Power†

PRAKASH.DOC 9/12/2003 1:37 PM THE ESSENTIAL MEANING OF EXECUTIVE POWER† Saikrishna Prakash* Scholars disagree about the Executive Power Clause’s meaning. Some scholars claim that the clause does not vest any power but instead establishes the title and number for the apex of the executive branch. Others believe that the clause vests power but are unsure what domestic power it might vest. This article seeks to resolve the dispute by shedding light on the essential, historical meaning of executive power. Although “executive power” was often used to en- compass a bundle of powers typically enjoyed by the executive branch, such as foreign relations control and the power to appoint, the phrase most often was used as a shorthand for the power to execute the laws. Indeed, the phrase “executive power” comes from the principal or essential power of an executive—the power to execute the law. Evidence from the eighteenth century reveals this essential meaning of executive power. European political theorists of that era de- clared that the executive power was the power to execute the laws. In America, state constitutions and political commentators employed this basic definition. Debates at the Philadelphia and state ratifying conventions also confirm this meaning, with framers and ratifiers re- peatedly observing that the President could execute the law by virtue of the executive power. Finally, after ratification, statesmen from all three branches understood that the executive power was the power to execute the laws. The founders understood that at least two subsidiary authorities flowed from the power to execute the law. Vested with the executive power, the president may execute any federal law by himself. Because the Constitution establishes that the executive power is his, the Consti- tution authorizes the president to execute any federal law. This con- stitutionally sanctioned power to execute the law explains why the president is widely regarded as an executive, i.e., an official who exe- † © 2003. All rights reserved. * Professor of Law, University of San Diego School of Law. Email: [email protected]. Thanks to Carl Auerbach, Steve Calabresi, Nelson Lund, Michael Rappaport, Michael Ramsey, Steve Smith, John Yoo, and participants in University of San Diego’s faculty workshop for helpful com- ments. Thanks to Alexandra Bernay, Jason Cohen, and Keith Kelly for able research assistance. 701 PRAKASH.DOC 9/12/2003 1:37 PM 702 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2003 cutes the law. Moreover, the executive power also enables the president to control other governmental officers who execute federal law. Because only the president has the executive power, others who execute the law derive their authority to execute not from the statutes that create their offices but from the president. This feature of the executive power reveals why the president is properly referred to as the chief executive. Other officials who execute the law are “executive” officers by virtue of their law execution role and because they are the chief executive’s means of executing the law. TABLE OF CONTENTS I. Two Narrow Conceptions of the Executive Power and the President’s Relationship to Law Execution.....................................706 A. The Non-Executive Thesis.........................................................707 B. The Chief Overseer Thesis ........................................................709 II. The Textual Foundations for the Chief Executive Thesis..............713 A. The Executive Power Clause.....................................................714 B. Faithful Exercise of the Executive Power................................720 C. The Commander-in-Chief and the Law Executing Militia ....726 D. The Opinions Clause ..................................................................728 E. The Appointment of Inferior Officers......................................733 F. Other Textual Indicia of a Law Enforcement Executive .......735 G. The Necessary and Proper Clause ............................................737 H. Summary of the Textual Treatment..........................................740 III. Eighteenth-Century Political Theorists Explain the Executive Power....................................................................................................742 A. John Locke...................................................................................743 B. Baron de Montesquieu...............................................................745 C. William Blackstone.....................................................................748 D. John Louis De Lolme.................................................................750 E. Lessons from the Eighteenth-Century Political Theorists .....751 IV. The Executive Power in America Prior to the Constitution’s Drafting................................................................................................753 A. American Political Tracts Discuss the Executive Power........753 B. The Executive Power in the State Constitutions.....................756 C. The Executive Power at the “National” Level ........................764 D. Summary of Pre-Constitutional Evidence ...............................768 V. The Executive Power at the Philadelphia Convention...................769 A. All Plans Called for a Law Enforcement Executive ...............770 B. Executive Unity...........................................................................772 C. Selection and Tenure of the Executive.....................................774 D. Adequate Defense of the Executive.........................................775 E. Lessons from the Philadelphia Convention .............................777 PRAKASH.DOC 9/12/2003 1:37 PM No. 3] THE ESSENTIAL MEANING OF EXECUTIVE POWER 703 VI. The Executive Power During the Ratification Struggle.................779 A. Separation of Powers..................................................................780 B. Executive Unity and Superintendence.....................................783 C. Selection and Tenure of the Executive.....................................786 D. Lessons from the Ratification Struggle ....................................788 VII. The Executive Power in the New Republic .....................................789 A. President George Washington...................................................790 B. Treasury Secretary Alexander Hamilton.................................792 C. Representative James Madison.................................................794 D. Supreme Court Justice James Wilson.......................................798 E. The Originalist Foundations of the Chief Executive Thesis..799 VIII. Critiquing the Modern Critics of the Chief Executive Thesis ......800 A. The Myth of a Separate Administrative Power.......................801 B. The Chief Inspector General.....................................................805 C. Text and History “Slight” ..........................................................808 1. Methodological Errors........................................................810 2. Textual Confusion...............................................................813 3. The End of the Separation of Powers................................817 4. Concluding Thoughts..........................................................818 D. Some Parting Puzzles for Friendly Skeptics.............................819 IX. Conclusion ...........................................................................................819 Though a prominent part of our Constitution, the clause that vests the president with the “executive power” remains an enigma.1 A handful of scholars claim that it mandates a unitary, hierarchical executive branch under the president’s control, and that it vests the president with the powers traditionally associated with the executive, subject to the refine- ments and limitations found elsewhere in the Constitution. Other scholars scoff at such claims, insisting that the clause vests absolutely nothing. Instead, the clause is but a convenient shorthand for relating that a single president enjoys the authorities enumerated in the remainder of Article II. A third group of scholars seem either to pass over the clause or to equivocate about its meaning. Not quite knowing what to make of it, they avert their eyes and hope that whatever the clause’s meaning, it will not jeopardize their particular claims. The general neglect of the clause retards contemporary discourse. For instance, consider the scholarly treatment of Baron de Montes- quieu’s famous separation of powers maxim. There is no more widely cited commentary on the separation of powers than Montesquieu’s dis- cussion of the absolute necessity of keeping separate the three powers of government. Because the Constitution’s makers embraced Montes- 1. U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United States of America.”). PRAKASH.DOC 9/12/2003 1:37 PM 704 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2003 quieu’s famous maxim, every separation of powers scholar wants to claim that the maxim supports their particular assertions (or at least does not cast doubt on their arguments). Yet many scholars make no meaningful attempt to discern what Montesquieu meant by executive power. Hence, the most significant commentary on the separation of powers is opaque to many. This article sheds light on the essential, original meaning of the executive power and highlights the president’s centrality in federal law enforcement, thereby advancing

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