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”, 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.”
Applying “[t]he rule of construction * * * that affirmative words in the Constitution * * * must be construed negatively as to all other cases” 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, 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”. But nothing else.