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10/30/2019

Ilan Wurman: In Search of Prerogative
Michel Ramsey

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted In Search of Prerogative (70 pages) on SSRN.  Here is the abstract:

The standard formalist account of Article II’s executive vesting clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, Julian Mortenson and John Harrison independently challenge this “residual vesting” thesis by amassing evidence that “the executive power” textually referred only to the power to carry laws into execution, and not to the bundle of royal prerogatives — for example over foreign affairs and national security — enjoyed by the king in Great Britain. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts.

This Article dissents from both views. The executive power was indeed about law-execution, and was not a residual grant of power; but, I argue, both the founding generation and their key guide, Blackstone, likely shared a “thick” understanding of this “executive power.” Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers, and to promulgate regulations, as necessary incidents to law-execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention; to infer that the delegates themselves were unaware of the implications of what they had written; and to ignore the fact that not a single opponent of the Constitution during ratification as much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, requires us to ignore centuries of practice and precedents in foreign affairs as well as domestic matters. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the President probably has more power in the domestic sphere than under a thin law-execution account, but less in foreign affairs than under the residual account.

Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.  Download it while it's hot!"

(This is the third major article this year attacking the main contention of The Executive Power in Foreign Affairs.  I feel a bit beleaguered.)