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Article II Vests Executive Power, Not the Royal Prerogative Julian Davis Mortenson University of Michigan Law School, [email protected]

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Article II Vests Executive Power, Not the Royal Prerogative Julian Davis Mortenson University of Michigan Law School, Jdmorten@Umich.Edu University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2019 Article II Vests Executive Power, Not the Royal Prerogative Julian Davis Mortenson University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/2062 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Constitutional Law Commons, Legal History Commons, and the President/ Executive Department Commons Recommended Citation Mortenson, Julian Davis. "Article II Vests Executive Power, Not the Royal Prerogative." Colum. L. Rev. 119, no. 5 (2019): 1169-272. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 119 JUNE 2019 NO. 5 ARTICLE ARTICLE II VESTS THE EXECUTIVE POWER, NOT THE ROYAL PREROGATIVE Julian Davis Mortenson∗ Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presi- dential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional original- ists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” re- ferred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing. There was indeed a term of art for the Crown’s nonstatutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “pre- rogative.” The other elements of the prerogative—including those ∗ Professor of Law, Michigan Law School. Thanks to Kate Andrias, Nick Bagley, Mary Sarah Bilder, Curt Bradley, Josh Chafetz, Andrew Cecchinato, Bobby Chesney, Kristina Daugirdas, David Feldman, Martin Flaherty, Jean Galbraith, Jeff Goldsworthy, Tom Green, Monica Hakimi, Don Herzog, John Hudson, Aziz Huq, Rebecca Ingber, Andrew Kent, Adam Kleven, Gary Lawson, Marty Lederman, Thomas Lee, Michael McConnell, Conrad McRae, Gabe Mendlow, Henry Monaghan, Jefferson Powell, David Pozen, Richard Primus, Rebecca Scott, Matt Steilen, Jeremy Tellman, Matt Waxman, Ingrid Wuerth, and Ilan Wurman for helpful comments on this draft. Thanks also to participants in the ASIL International Law in Domestic Courts Workshop, Boston University Law Workshop, University of Cambridge Public Law Workshop, Michigan Legal Theory Workshop, and Yale–Duke Foreign Affairs Workshop for helpful discussions of various pieces of this project. Special appreciation goes to Seth Quidachay-Swain, Virginia Neisler, and the unsurpassed University of Michigan research librarians for their extraordinary support in making this project possible. 1169 1170 COLUMBIA LAW REVIEW [Vol. 119:1169 relating to national security and foreign affairs—were possessed in addition to “the executive power” rather than as part of it. INTRODUCTION ........................................................................................1170 I. THREE VIEWS OF THE EXECUTIVE POWER CLAUSE .............................1175 II. POLITICAL THEORY ............................................................................1188 A. The Historical Background .......................................................1191 B. The Execution Problem .............................................................1201 C. Execution: The King’s Defining Role .......................................1207 D. Toward a Separation of Powers ..................................................1210 III. LEGAL DOCTRINE ...............................................................................1220 A. The Umbrella Term for the Crown’s Nonstatutory Powers Was “The Royal Prerogative” ............................................................1220 B. “The Executive Power” Was the Power to Execute the Laws ...1230 C. This Power to Execute Was an Empty Vessel, both Subsequent and Subordinate to the Power to Legislate ...............................1234 IV. WHY HAVE RESIDUUM PROPONENTS MISUNDERSTOOD THIS EVIDENCE? .........................................................................................1243 A. The First Scholarly Error: Attributing the Whole to the Part ..1245 B. The Second Scholarly Error: Misunderstanding “Internal Executive” and “External Executive” ........................................1250 C. Fertile Ground Among Nonspecialists: Conflating the “Separation” and the “Distribution” of Powers ........................1260 V. DICTIONARIES ....................................................................................1263 CONCLUSION ............................................................................................1269 INTRODUCTION What would happen if the President had no qualms about violating the law? Suppose he is fighting terrorism and wants to deploy wiretaps prohibited by the statutory surveillance framework1 and an interrogation program that violates federal criminal law.2 Or imagine he wants to 1. Cf. Offices of Inspectors Gen., Unclassified Report on the President’s Surveillance Program 11, 13 (2009), https://fas.org/irp/eprint/psp.pdf [https://perma.cc/Q7H5-SV29] (quoting an unreleased Office of Legal Counsel memo’s assertion that the Foreign Intelligence Surveillance Act “cannot restrict the President’s ability to engage in warrant- less searches that protect the national security” (internal quotation marks omitted)). 2. Cf. Memorandum from Deputy Assistant Att’y Gen., Office of Legal Counsel, to Gen. Counsel, Dep’t of Def. 18–19 (Mar. 14, 2003) [hereinafter Office of Legal Counsel Torture Memorandum], https://www.justice.gov/sites/default/files/olc/legacy/2009/08/24/ memo-combatantsoutsideunitedstates.pdf [https://perma.cc/XQ4A-VHSV] (contending that “if an interrogation method arguably were to violate” federal statutes criminalizing 2019] ARTICLE II VESTS THE EXECUTIVE POWER 1171 conduct an unauthorized humanitarian intervention but runs into a statutory time limit requiring him to cease hostilities.3 What if a statute requires U.S. passports to include a diplomatically provocative term, but the President wants the State Department to leave it out?4 Different though the stakes and specifics of these questions may be, their under- lying structure is identical. In each hypothetical, a presidential policy—to wiretap, torture, bomb, or scriven—is prohibited by existing legislation. In each hypothetical, the prohibition is too clear to be finessed by clever statutory interpretation. And in each hypothetical, lawyers have to decide what will give way. Does the statute constrain the President? Or does exec- utive power trump the statute? A leading scholarly view—shared by at least one current member of the Supreme Court5 and asserted with increasing persistence by the exec- utive branch itself6—is that cases like these often turn on the President’s assault, maiming, and war crimes, then those statutes “would be unconstitutional as applied in this context”). 3. Cf. Dep’t of State & Dep’t of Def., United States Activities in Libya 25 (2011), https://fas.org/man/eprint/wh-libya.pdf [https://perma.cc/M53X-JW2N] (“The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution . .”). 4. Cf. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2082–83, 2096 (2015) (permitting the Administration to ignore a statute that entitled a Jerusalem-born U.S. citizen to have his passport list his place of birth as “Israel”). 5. See id. at 2097–99 (Thomas, J., concurring in the judgment in part and dissenting in part) (“Founding-era evidence reveals that the ‘executive Power’ included the foreign affairs powers of a sovereign State. This view of executive power was widespread at the time of the framing of the Constitution.”). 6. See, e.g., Memorandum from Caroline D. Krass, Principal Assistant Att’y Gen., Office of Legal Counsel to Att’y Gen., Authority to Use Military Force in Libya, 2011 WL (OLC) 1459998, at *5–6 (Apr. 1, 2011) [hereinafter Office of Legal Counsel Libya Memorandum] (arguing that the President has “independent authority” deriving from the President’s “‘unique responsibility,’ as Commander in Chief and Chief Executive, for ‘foreign and military affairs,’ as well as national security” (emphasis added) (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993))). The Obama Administration further argued that under the “historical gloss” on the executive power vested in Article II, the “President bears the ‘vast share of responsibility for the conduct of our foreign relations’” and accordingly holds “independent authority in the areas of foreign policy and national security.” Id.
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