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03/06/2019

Julian Davis Mortenson on Executive Power
Michael Ramsey

Julian Davis Mortenson (Michigan) is guest blogging at Volokh Conspiracy on his new paper Article II Vests Executive Power, Not the Royal Prerogative.  His opening post is here, with this introduction:

When the Founders agreed that "[t]he executive Power shall be vested in a President of the United States of America," the core phrase had a single, simple, and uncontested meaning. The executive power meant the power to execute the laws. Period.

For the uninitiated, this conclusion may seem obvious on its face. Yet Gary Lawson has rightly called it "one of the most important questions of any kind, on any subject, under the Federal Constitution." And originalists are currently getting the answer wrong.

Let's start with some background. Basically, the Executive Power Clause has three competing interpretations.

1. The cross-reference thesis. On this view, the clause has no standalone content. It simply refers to the more specific powers listed later in Article II.

2. The law execution thesis. On this understanding, the clause grants exactly what its grammar suggests: the power to execute the laws.

3.  The royal residuum thesis. This view reads the clause to include all of the powers typically held by an eighteenth-century executive—particularly those relating to foreign affairs and national security—unless specifically revised or reallocated elsewhere in the Constitution.

The royal residuum thesis has enormous consequences. In its least aggressive form, it reads the Executive Power Clause as conveying a defeasible authorization to do what's necessary in the realm of foreign affairs and national security, except where either the Constitution or some specific statute forbids it. In its most aggressive form, the residuum thesis reads that authority as indefeasible. In other words, if some power was inherent to the eighteenth-century British Crown, nothing short of pretty clear constitutional text can stop the President from doing it. Both versions of the residuum thesis yield a strong interpretive presumption in favor of presidential power wherever either the Constitution or any given statute is ambiguous.

By this taxonomy, I guess I'm a less-aggressive royal residuum-ist (per this article with Saikrishna Prakash, this followup, and Chapters 3-6 of The Constitution's Text in Foreign Affairs).  Except I think it not accurate to say that this view "reads the Executive Power Clause as conveying a defeasible authorization to do what's necessary in the realm of foreign affairs and national security."  Professor Prakash and I are clear on the limits of our executive power thesis, and it's not remotely the idea that the President can "do what's necessary" in foreign affairs and (especially) national security.  Rather, it's the idea that the executive power includes -- in addition to law execution -- the diplomatic and military aspects of foreign relations (except where the Constitution gives the power to another branch).  The foreign affairs power (in our view) does not convey domestic powers, and especially not lawmaking powers.  It would be nice if Professor Mortenson made that clear.

His first substantive post is:  The Executive Power Is the Power to Execute the Laws.  It begins:

As a historical matter, what did the Executive Power Clause vest in the President? If Justice Scalia's District of Columbia v. Heller opinion is any guide, originalists looking for the eighteenth-century meaning of such terms should start with contemporary dictionaries. Heller cites two. One doesn't help much with the meaning of executive power. But here is Samuel Johnson's first definition of "executive": "Having the quality of executing or performing. They are the nimblest, agil, strongest instruments, fittest to be executive of the commands of the souls. Hale."

If that's what "executive" means, then the law execution understanding of the Executive Power Clause is plainly correct. (See yesterday's post for a primer on the competing claims about the meaning of the clause.) The executive power is the authority to "execut[e] or perform[]" someone else's "commands" as their "instrument[]." That leaves the clause with no grammatically plausible hook for an inherent substantive authority over foreign affairs or national security policy.

You might wonder whether other dictionaries told a different story. Well, the article prompting these posts examines more than a hundred. (This part of the research was not exactly scintillating.) Every definition I found is in accord. In fact, the closer to the constitutional context they get, the clearer the point. In governance, the object of execution is the laws, such that "executive" is often defined as "having the quality of executing or performing. Active; having the power to put in act the laws." And the source of that command was the legislative process, such that a number of dictionaries extend the core definition by going on to specify: "Active, or putting into execution, opposed to deliberative or legislative."

And further:

A serious effort to reconstruct historical meaning of course requires a lot more than dictionaries. And so the article is mainly concerned with exploring the background literature: legal treatises, political theory, polemical commentary, and the records of judicial and legislative deliberations. If anything, this material cuts even more decisively in favor of the law execution thesis. As explained both in the article and in a Lawfare post almost five years ago, Blackstone's treatise is typical of the era in describing legislative power and executive power as two steps in a logical sequence. If the "legislative ... authority" was "the right ... of making ... the laws," he explained, then the "executive authority" was simply the corresponding "right ... of enforcing the laws."

As usual, Blackstone was just restating conventional wisdom. Locke similarly described "the legislative power" ("a right to direct how the force of the common-wealth shall be employed") as a logical predicate to "the executive power" ("see[ing] to the execution of the laws that are made, and remain in force"). Sidney said "the legislative … power … is exercised in making laws," and "the executive power … is exercised … in judging controversies according to such as are made." Even Filmer—the greatest theorist of royal absolutism, and the fourth author listed in the "Politics" section of Madison's 1783 library list—described executive power as "a power of putting th[e] laws in execution by judging and punishing offenders." As Filmer saw things, subjecting the King to statutory authority means that he is "brought from the legislative to executive power only." There's lots and lots more where this came from, and it's all to the same effect.

Agreed, executive power clearly had the meaning Professor Mortenson recounts.  One hopes this will be the end of what he calls the "cross-reference" theory, if it had not already been disproved by prior articles by Steven Calabresi and Saikrishna Prakash.

The question is whether executive power had any further meaning.