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03/02/2012

Chapman and McConnell on Due Process and Executive Power
Michael Ramsey

Mike Rappaport noted last week the new article by Nathan Chapman and Michael McConnell, Due Process as Separation of Powers.  This article is destined to be immensely influential, perhaps the most important originalist article of 2012.  As the abstract and Mike's comments indicate, much of it is about substantive due process (and about Ryan Williams' also-very-important 2010 article The One and Only Substantive Due Process Clause).

I wanted to note, though, that Chapman and McConnell's article also has important discussions of executive power.  In particular, it's worth higlighting two points:

(1)  Whatever its implications for legislative power, due process at its core limits executive power.  From its origins in the "law of the land" clause in Magna Charta, it was a limit on the king: the executive power could not take life, liberty or property without support and participation from the other branches.  Hence Chapman and McConnell's title: Due Process is separation of powers, separating executive power from legislative and judicial power.  As Chapman and McConnell put it,

By the time the Fifth Amendment was enacted, everyone agreed that due process applied to executive officials and courts. It meant that the executive could not deprive anyone of a right except as authorized by law, and that to be legitimate a deprivation of rights must be preceded by certain procedural protections characteristic of judicial process: generally presentment, indictment, and trial by jury.  …  Due process has from the beginning been bound up with the division of the authority to deprive subjects of life, liberty, or property between independent political institutions. In modern parlance, due process has always been the insistence that the executive – the branch of government that wields force against the people – deprive persons of rights only in accordance with settled rules independent of executive will, in accordance with a judgment by an independent magistrate.  (pp. 7, 9)

Or, as they describe it later (p. 11), in eighteenth-century English understanding due process was a “guarantee of judgment by an independent institution according to procedures designed to take the case out of the hands of the king.”

(2)  It follows (though Chapman and McConnell make the point less explicitly) that the unamended Constitution's separation of powers provisions contain the core meaning of due process irrespective of the Fifth Amendment.  Consider, as Chapman and McConnell do (pp. 94-95), Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure case).  Famously, in that case President Truman seized steel mills when a labor dispute threatened to interrupt the supply of steel for the Korean War; the Court found the action unconstitutional.  Chapman and McConnell comment:

The first, central, and largely uncontroversial meaning of “due process of law,”  the meaning established in Magna Charta and applied vigorously by Coke against the first two Stuart kings, was that the executive may not seize the property or restrain the liberty of a person within the realm without legal authority arising either from established common law or from statute. In other words, executive decrees are not “law.” The principle is so fundamental it is rarely tested. But in the  most famous of all Supreme Court decisions involving an executive seizure of private property based on nothing but an executive order, the Steel Seizure Case, the Supreme Court floundered about for a legal framework for decision and – with the exception of a casual reference in a concurring opinion – failed even to mention the Due Process Clause. Lord Coke would have done a better job with the case, using nothing fancier than Magna Charta.  ...

...  Whatever the extent of the general prerogative “executive power” vested in the President by the first sentence of Article II, the Due Process Clause makes clear that he cannot deprive persons in the United States of life, liberty, or property except in the course of proper execution of “law.” Only Congress has power to make new law. President Truman’s executive order was not “law.” That would have been a complete and entirely satisfactory rationale for the decision.

This is a great point, but the same conclusion follows from application of the original meaning of executive power in Article II, Section 1 (as discussed in Ch. 5 of The Constitution's Text in Foreign Affairs).  Indeed, the two points are intertwined.  By the eighteenth century, Magna Charta's limits on the king were so ingrained in separation of powers theory that they had become part of the meaning of executive power.  Executive power was defined in contrast to legislative (lawmaking) power, meaning fundamentally that (as Chapman and McConnell say) "executive decrees were not 'law'" and that "the executive may not seize the property or restrain the liberty of a person within the realm without legal authority" because exceutive power meant only the power to act against private individuals pursuant to legal authority.  To this extent, then, the due process clause made explicit what the unamended Constitution already said about executive power.  Steel Seizure can rest on either basis; indeed, they are really the same point.