Tenth Amendment Center: Executive Power: Who Made Presidents and Governors Kings?
Article II of the Constitution defines the role and qualifications of the president.
The Constitution delegates specific powers and responsibilities to the executive branch including the power of appointment, the power to make treaties with the advice and consent of Congress, the veto power, etc.
These specific powers delegated to the executive 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.” [Emphasis added]
What exactly does “executive power” mean in this context? Is it limited by the specific powers listed, or does it include a broader slate of “implied” powers?
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.
The legislative vesting clause in Article I reads:
“All legislative Powers herein granted shall be vested in a Congress of the United States” [Emphasis added]
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.
But the idea that the vesting clause delegates broad, undefined powers to the president presents several interpretive problems.
In the first place, giving the president a broad range of powers runs counter to everything we’ve already discussed about the nature of the general government. If, as all of the supporters claimed, it was to be a limited government with specific functions, they wouldn’t have given the president virtually unlimited authority. Again, as James Madison put it in Federalist #45, “The powers delegated by the proposed Constitution to the federal government are few and defined.” This includes the powers delegated to the president.
In fact, the founding generation was particularly wary of vesting too much authority in a single individual. After all, it just fought a bloody war to free itself from the tyranny of a king.
We learn in elementary school history classes that American revolutionaries rejected the notion of a king. But it went beyond that. The founding generation also sought to eradicate the concept of a powerful magistrate who ruled over the people and who was empowered to make law. As the Americans split with Great Britain and forged ahead forming new governments, they were ever-fearful of giving power to individuals detached and unaccountable from the will of the people.
The British colonial governors ruled with that kind of authority. The founding generation would have no more of that. As the people of the states began to draft their own constitutions, 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.”
This represented a clean break from the then-accepted philosophy of government. In the Old World, executives wielded tremendous power. Instead, Americans vested their legislatures with the greatest level of authority.
Why?
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.”
The founding generation believed legislatures best reflected the will of the people because they were directly accountable. And as we’ve already established, the founding generation believed sovereignty was ultimately vested in the people, not in any government institution.
Governors in the new state governments were thus relegated to merely “executing the laws,” essentially an administerial role.
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.
But today, we have utterly abandoned the principles articulated by Sullivan – the principles America was founded on – and returned to the system of unaccountable, absolute rulers the founding generation fought to free itself from.
Modern presidents make laws using their pens and their phones, as Barack Obama put it. They send troops off to war without even so much as consulting Congress. They issue supposedly legally binding edicts and pronouncements pulling from a vast reservoir of assumed executive powers.
But these undefined powers simply don’t exist.
Proponents of a narrow reading of the presidential vesting clause 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.
- Designation
- Organizational details
- 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.” (4)
Furthermore, simply saying the president has “executive power” doesn’t really mean anything. Executive power wasn’t 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 was no list of specific executive powers that were common to all executive roles that anybody can 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 define and exercise as he saw fit.
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.”
Mike Maharrey
June 30, 2020 at 06:45PM
