Read: The Founders’ great mistake
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.
Read: The strangest thing about Trump’s approach to presidential power
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.”