What Two Crucial Words in the Constitution Actually Mean
I reviewed more than a thousand publications from the founding era, and discovered that “executive power” doesn’t imply what most scholars thought.
Is the president a king? The question may sound absurd, but you’d be surprised: A great many lawyers, politicians, judges, and policy experts think the U.S. Constitution builds from exactly that starting point. Their argument relies on the first sentence of Article II, which gives the president “the executive power.” That phrase, they claim, was originally understood as a generic reference to monarchical authority. This means, they say, that the American president must have been given all the prerogatives of a British king, except where the Constitution specifies otherwise. The foreign-relations scholar Philip Trimble states their conclusion plainly: “Unless the [Article II] Vesting Clause is meaningless, it incorporates the unallocated parts of Royal Prerogative.”
The repercussions of this claim ripple across the face of constitutional law. During Senate hearings on legislating an end to the Iraq War, Brad Berenson, who had served as one of President George W. Bush’s top lawyers, told the Senate that the executive-power clause conveys “a vast reserve of implied authority to do whatever may be necessary in executing the laws and governing the nation.” When the Bush administration wanted to defy statutory restrictions on dragnet surveillance, the Justice Department relied on the clause in advising that Congress “cannot restrict the President’s ability to engage in warrantless searches that protect the national security.” And Justice Clarence Thomas put the clause front and center in concluding that “those who ratified the Constitution understood the ‘executive Power’ vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution.”
These aren’t selective examples. Pick a random recent controversy about presidential power, and you’re almost certain to find the president-as-king claim woven into the debates. During the George W. Bush administration, the argument was used to defend the torture of prisoners, the evasion of habeas corpus, and the claim of authority to invade Afghanistan and Iraq without congressional authorization. During the Obama administration, the argument surfaced in debates about the administration’s defiance of a statute recognizing Jerusalem as the capital of Israel and about the use of force against Libya. And supporters of the Trump administration have supercharged the claim, advocating a breathtaking theory of indefeasible imperial prerogative in areas ranging from the Russia investigation and workaday congressional oversight to immigration law and the bombing of Syria.
After years of research into an enormous array of colonial, revolutionary, and founding-era sources, I’m here to tell you that—as a historical matter—this president-as-king claim is utterly and totally wrong. I’ve reviewed more than a thousand publications from the 17th and 18th centuries for each instance of the word root exec-, and have read most of those texts from cover to cover with the topic of presidential power squarely in mind. I’ve read every discussion of executive power and presidential authority that appears in the gigantic compilation of archival materials known as the Documentary History of the Ratification of the United States Constitution. And with the help of a team of research assistants, I’m most of the way through flyspecking the full records of the Continental Congress—including committee reports, floor debates, and delegate correspondence—with the same question in mind.
All this work has left me with both the confidence to share this conclusion and the sense of obligation to do so as bluntly as possible. It’s just not a close call: The historical record categorically refutes the idea that the American revolutionaries gave their new president an unspecified array of royal prerogatives. To the contrary, the presidency that leaps off the pages of the Founders’ debates, diaries, speeches, letters, poems, and essays was an instrument of the law of the land, subject to the law of the land, and both morally and legally obliged to obey the law of the land.
If you had the same third-grade history class I did, you might think this all goes without saying. But in the realm of constitutional law, these findings represent a tectonic shift.
For more than two centuries, jurists and statesmen have intoned that “ours is a government of limited powers.” That proposition is the foundational principle of federal power. The Constitution did not grant Congress open-ended authority to regulate in the public interest. Instead, the Founders wrote a laundry list of highly specific legislative authorities. This enumeration strategy, the Supreme Court has explained, is why courts must carefully consider the national government’s legislative limits: “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted.” From this starting point comes the endless constitutional sparring over the scope of the powers to regulate commerce, to tax, to spend, and to enter into treaties—just to name a few. Almost everyone agrees that unless legislators can point to an affirmative grant of constitutional authority, Congress simply can’t act.
A funny thing happens, though, when it comes to the presidency. Suddenly you see hand-waving that would be laughed out of the room just about anywhere else. Here’s Justice Robert Jackson on executive power, in 1952:
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
This is one of the most celebrated opinions in constitutional history. Is Jackson seriously advising us to approach problems of presidential power by meditating on curtsying wheat and overweight cows?
The answer is obviously no. But such sorcerous gesticulations are motivated by an inconvenient fact: The constitutional text doesn’t actually authorize the president to do very much. It enumerates the veto, appointments, and pardon powers. It grants the president “the executive power” and the office of commander in chief. It authorizes the president to receive foreign ambassadors, demand reports from his subordinates, and deliver a State of the Union address. But aside from a few miscellaneous process authorities, that’s just about it.
The way president-as-king theorists see it, this fact is more than just inconvenient; it’s downright dangerous. Can we imagine a country, they ask, whose president doesn’t have the authority to conduct diplomacy, recognize foreign governments, terminate treaties, acquire territory, fire officers and employees, or announce national policy? Is it conceivable, they wonder, that our national charter would fail to include an escape hatch—“In case of emergency, break this law”—for any legal requirement that interferes with our national security? For president-as-king theorists, to ask these questions is to answer them. And so they claim that the first three words of Article II—“the executive power”—vest all the authorities I’ve just described and more.
As a historical matter, my research shows that this claim is dead wrong. “The executive power” granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority. The real meaning of executive power was something almost embarrassingly simple: the power to execute the law. Overwhelming evidence for this point pervades both the Founders’ debates and the legal and political theory on which their discussions drew.
Listen to how Gouverneur Morris framed the problem for his fellow delegates in Philadelphia. The central challenge of constitutional governance, he said, was to safely distribute each of “the three powers” that everyone knew so well: “one … the power of making[,] another of executing, and a third of judging, the laws.” Under this tripartite system, the function of executive power was both straightforward and indispensable—to implement instructions issued by a valid exercise of legislative power. In a famous 1774 Election Day sermon, Gad Hitchcock stated the consequence plainly: “The executive power is strictly no other than the legislative carried forward, and of course, controllable by it.” These weren’t idiosyncratic views. The catechistic statement of three interlocking powers served as a universal grammar for debating constitutional governance. As one exasperated British reviewer said of the relentless trinitarianism in John Adams’s 1787 constitutional treatise, “Upon this point, like Lord Chesterfield with the Graces, Dr. Adams dwells for ever.”
And so the historical Constitution just wasn’t that complicated. It defined the president’s fundamental role as the servant of legislative will. It gave the president a conditional veto to check Congress’s exercise of that will in any particular case. And it vested a smattering of other authorities where Article II specifically said so. But that was it. The very “doctrine of prerogative” and such “other peculiar properties of the royal character,” one Virginia newspaper explained, were conceptually “incompatible with the view of these states when they are settling the form of a republican government.” The defining fact of the Constitution’s separation of powers was the structural minimalism of its presidency: Because the president’s powers were “so clearly defined,” a South Carolina Federalist concluded, they “never can be dangerous.”
Did this leave gaps in the constitutional system as ratified in 1789? Of course it did! But the Founders weren’t idiots. They knew that no legal text can anticipate every possible eventuality, so they made specific provision for Congress to decide how to fill any gaps in the system. The constitutional text on this point could scarcely be more explicit: The national legislature is expressly authorized to make “all Laws which shall be necessary and proper for carrying into Execution” any of the “Powers vested by this Constitution in the Government of the United States.” The first Congress took up that invitation and ran with it, just like its successors have ever since—conveying those powers to the executive branch by statute that the constantly evolving democratic process deems necessary for the president to have.
It’s not like this vision of the presidency leads to weakness or irresolution. Under the modern administrative state, a vast statutory framework authorizes a spectacular range of presidential authorities. But as a matter of the original constitutional understanding, all such powers are subject to legislative revision. And that’s what the Founders expected. You can advocate originalism in constitutional interpretation. You can support the imperial presidency. But you can’t do both at the same time.