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“Executive Power” of the President of the United States

Americans of the founding era were too politically astute to delegate broad, undefined legal authority to a single individual who happened to occupy the Office of the President of the United States.

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Last Updated on August 20, 2022 by Constitutional Militia

“Executive Power” of the President of the United States: A Mere Residue of the Power Enjoyed by the King of England

Although the Constitution mandates that “[t]he executive Power shall be vested in a President of the United States”,[1] it does not specifically define the term “executive Power”. So some construction of the Constitution is necessary.

As usual, pre-constitutional legal history must be consulted first. During the Founding Era, WE THE PEOPLE were doubtlessly familiar with Blackstone’s “principle” in regard to “executive power”,

that in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him * * * unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go no farther. For otherwise the power of the crown would be indeed be but a name and a shadow, insufficient for the ends of government, if, where it’s jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say in the ordinary course of law; for I do not  * * * speak of those extraordinary recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression.”[2]

Americans of the founding era were far too politically astute and practical to deny that the delegation of public officials some “executive power” ”[]sufficient for the ends of government” would always be necessary “in the ordinary course of law”.[1] On the other hand, though they had just experienced the necessity for “extraordinary recourses to first principles” against serial abuses and misuses of “executive power”, which the Declaration of Independence recounted at length. Among theses were the indictments that

[h]e has kept among us, in times of peace, Standing Armies, without the consent of the legislatures.—He has affected to render the Military independent of and superior to the Civil Power.—He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended legislation:—for quartering large bodies of troops among us:—For protecting them, by mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States[.] * * *—He has abdicated Government here, by declaring us out of his Protection and waging War against us.

Footnotes:

1.) See, e.g., The Federalist No. 70 (Alexander Hamilton).

In the light of this dolorous experience detailed in the Declaration of Independence, paid for with an extensive effusion of blood and treasure, WE THE PEOPLE set out to define, by those definitions to limit and by those limitations especially to control “executive power” as much as practicable, so that such misbehavior would never again recur. The question was then and remains today, “Where should, and does, the Constitution ‘expressly, or by evident consequence, lay down some exception or boundary’ to ‘executive power’?”

A focus on what Blackstone called “some exception or boundary” is particularly fitting, because the very division of authority within the Constitution, in comparison with pre-constitutional English law, evidences the Founders’ concern with circumscribing “executive power” to the greatest degree still “[ ]sufficient for the ends of government”, as well as with following Blackstone’s dictum that “all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end”.[1]  Indeed, any intelligent construction of “[t]the executive Power” must be informed by the observations that:

(i) The plenary power of the King to reject Parliamentary legislation the Constitution transformed into the President’s veto, which Congress can always override.[2]

(ii) Some preëxisting “executive powers” of the King the Constitution divided between the President and the Senate—including the powers to “appoint Ambassadors” (footnote 3) “to make Treaties”.[4] and to “appoint * * * [certain] Officers of the United States”.[5]

(iii) Other preëxisting “executive powers” of the King the Constitution transferred entirely to Congress—including the powers to regulate foreign and domestic “Commerce” in certain ways;[6] to “fix the standard of Weights and Measures”;[7] ”[t]o coin Money, regulate the Value thereof and of foreign Coin”;[8] “[t]o constitute [judicial] Tribunals”;[9] to establish certain necessary public facilities;[10] as well as almost all of the powers relating to “War”, “the land and naval Forces”, and “the Militia of the several States”.[11] And,

(iv) A few of the preëxisting “executive powers” of the King in the Constitution eliminated entirely—including the power to grant “Title[s] of Nobility”,[12] and all of the powers associated with his position as “the head and supreme governor of the national church”.[13]

Footnotes:

1.) William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 49.

2.) Compare Id., Volume 1, at 154 and 261, with U.S. Const. art. I, § 7, cl.. 1.

3.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 253, with U.S. Const. art. II § 2, cl. 2.

4.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 257-258,  with U.S. Const. art. II § 2, cl. 2.

5.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 272,  with U.S. Const. art. II § 2, cl. 2.

6.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 263-264, 265-266, and 273-274, with U.S. Const. art. I § 8, cl. 3.

7.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 274-276, with U.S. Const. art. I § 8, cl. 5.

8.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 276-278,, with U.S. Const. art. I § 8, cl. 5.

9.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 266-267, with U.S. Const. art. I § 8, cl. 9 and art. III, §  1.

10.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 264-265, with U.S. Const. art. I § 8, cl. 17 and art. III, §  1.

11.) By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 395.

12.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 271-272, with U.S. Const. art. I § 9, cl. 8.

13.) Compare W. Blackstone, Commentaries on the Laws of England, Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 278-280, with U.S. Const. amend. I.

Besides the examples of these particular enumerated powers and disabilities, the manner in which the Constitution vests the President with authority demonstrates the limited nature of “[t]he executive Power” in general.

First, the president can obviously can claim no power to disregard or set aside the Constitution. How could any rational and honest President ever consider himself justified in acting above or outside of, let alone against, the Constitution, when what the Constitution calls “the Office of the President” is entirely a construct of the Constitution, and when “[b]efore he enter on the Execution of his Office, [the President] shall take the following oath or affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of the United States, and to the bedt of my Ability, preserve, protect and defend the Constitution of the United States’”?[1] Self-evidently he could not, because the constitutional duty to which he has thus bound himself is to “take Care that the Laws be faithfully executed”[2]—just and only as the Constitution requires, and Congress has prescribed.

Second, the President lacks any power to enact, or otherwise purport to make, any “Laws” on his own because “[a]ll legislative Powers * * * granted” in the Constitution are “vested” exclusively in Congress.[3]

Third, the President lacks any power to adjudicate the application of the laws to particular parties in specific “Cases” or “Controversies”.[4]

Fourth, he enjoys no power to repeal, revoke, annul, overrule, set aside, or suspend any laws—unless those laws themselves so provide, or are not really “laws” at all because they are unconstitutional.[5] Fifth and last, the President cannot plausibly assert that “[t]he executive Power” embraces every theoretical power which might be imagined to be “executive” in nature:

If the Framers of the Constitution had intended “the executive [P]ower” in [Article II, Section 1, Clause 1] to include all power of an executive nature, they would not have added the carefully defined grants of [Article II, Section 2]. They were scholarly men and it exceeds belief “that the known advocates in the [Federal] Convention [of 1787] for a jealous grant and cautious definition of federal powers should have silently permitted the introduction of words and phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.” Why say, the President shall be commander-in-chief; require opinions in writing of the principle officers in each of the executive departments; shall have power to grant reprieves and pardons; shall give information to Congress concerning the state of the union; shall receive ambassadors; shall take care that the laws be faithfully executed—if all of these things and more already been vested in him by the general words? The Constitution is an exact statement. * * * that the general words of a grant are limited when followed by those of special import is an established canon; and an accurate writer would hardly think of emphasizing a general grant by adding special and narrower ones without explanation. “An affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended.”[6]

Footnotes:

1.) U.S. Const. art II, § 1, cl. 7 (emphasis supplied). Significantly, this “Oath or Affirmation” employs the oracular prophetic and imperative phrase “I will” rather than the simple idiomatic phrase “I shall”.

2.) U.S. Const. art. II, § 3 (emphasis supplied).

3.) Contrast U.S. Const. art. I, §  1 (emphasis supplied) with art. II, §  1, cl. 1.

4.) Contrast U.S. Const. art. II, §  1 (emphasis supplied) with art. III, §§ 1, and 2

5.) See, e.g., Huntington v. Worthen, 120 U.S. 97, 101-102 (1887); Norton v. Shelby County, 118 U.S. 425, 442(1886); Poindexter v. Greenhow, 114 U.S. 270, 288 (1885).

6.) Myers v. United States, 272 U.S. 228-229 (1926) (McReynolds, J., dissenting).

Applying “[t]he rule of construction * * * that affirmative words in the Constitution * * * must be construed negatively as to all other cases”[3] compels the conclusion that “[t]he executive Power” encompasses all of the powers explicitly defined in Article II of the Constitution, plus every power which Congress may be authorized to delegate to the President by statute,[4] plus the power to execute the laws of the United States pursuant to and in fulfillment of his duty to “take Care that the Laws be faithfully executed”.[5] But nothing else.[6]

1.) U.S. Const. art II, § 1, cl. 1.

2.) William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes and Appendix, 1771-1773) Volume 1, at 250-251. Blackstone was the preëminent mentor of America’s Founding Fathers on the pre-constitutional laws of England. See e.g., Schick v. United States, 195 U.S. 65, 69 (1904); and Alden v. Maine, 527 U.S. 706, 715 (1990).

3.) Ex parte Vallandigham, 68 U.S. (1 Wallace) 243, 252 (1864) (emphasis in the original) (footnote omitted). Accord, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ; and Cohen v. Virginia, 19 U.S. (6 Wheaton) 264, 394-395 (1821).

4.) See U.S. Const. art. I § 8. This under the proviso that Congress must devise sufficient standards to guide the President’s actions. See, e.g., Panama Refining Company v. Ryan, 293 U.S. 388, 414-430 (1935

5.) Compare Myers v. United States, 272 U.S. 233-238 (1926) (McReynolds, J., dissenting), with U.S. Const. art II § 3; and art I, §  8, cl. 18.

6.) By Tyranny Out of Necessity: The Bastardy of Martial Law, Bookmasters Inc., Ashland, Ohio (2014), by Dr. Edwin Vieira, Jr., page 397.

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