ABSTRACT
From: Public Administration Review 49:2, Special Issue 1989): 108-114. Abridged.
At the time of the founding of the Republic, the ambiguity that engulfed the executive was due as much to political expectations as to etymology and usage. The framers of the U.S. Constitution wanted a strong executive for two incompatible reasons. The sad administrative experience under the Articles of Confederation taught them the need for an independent executive whose legal existence would be liberated from the committees of the Continental Congress. This line of argument anticipated that of the Civil Service Reformers who would appear a century later. It was an argument grounded in concern for governmental efficiency. The executive was to be independent in order to enable him (or them-the single executive was quite controversial) to carry out the will of the Congress more efficiently. This theme, arising from the colonial experience, favored an independent executive, but not an executive that was equal to the legislature. This is the origin of the clerkship side of the presidency. Some framers of the Constitution also wanted an independent executive
to check the legislative excesses that they saw in many of the states. If they were about to establish a real government at the national level, there would be need for an authentic legislature with powers far greater than those of the hapless Continental Congress. Steps would have to be taken to keep this new national legislature from oppressing the people and disregarding their rights. To this end an independent executive was an indispensable means. He or they would vindicate the rights of the citizens and would maintain a watchful vigilance against the “excesses of democracy,” that notorious failing of all popular governments. This political sentiment grounds the theme of President as leader. Not surprisingly, these ambiguities in language and political expectations
found their way into the text of the Constitution itself. The first sentence of Article II provides that “The executive power shall be vested in a President
in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Champions of a strong executive have always emphasized the absence of the qualifying words “herein granted” in Article II. This absence, they maintain, means that the executive power (presumably all of it) is vested in the President. Congress possesses all those legislative powers that are granted in the Constitution itself, but it does not possess all legislative power. That is, there are many areas of life in which Congress may not legislate. It may legislate only in those areas in which the Constitution permits it to do so. To be sure, Congress possesses all legislative powers in the sense that other institutions created by the Constitution have no explicit authorization to legislate. But the legislative powers of Congress are confined to the written document. The practical import of these exegetical niceties is that they serve as a
launching pad for a constitutional argument in support of inherent executive powers that are not confined by the text of the Constitution. This argument sees in the executive power clause a positive grant of power to the President to do whatever any political executive can do. Activist Presidents, like Jackson, Lincoln, and Theodore Roosevelt, made skillful use of this argument. Critics of presidential power have responded in a variety of ways. One
line of argument admits that the President does indeed possess all executive power without qualification, but it maintains that this does not justify the far-reaching conclusions of presidential apologists. What is executive power, they ask. It is simply the power to execute law. The President may only execute that which the Congress has legislated. It was perfectly logical for the framers to omit the “herein granted” qualification from the grant of the executive power to the President, because, having provided that the Congress has only those legislative powers “herein granted,” there was no need to repeat the same language in the article establishing the executive. Executive power cannot outstrip legislative power, for there would be nothing for the executive to execute. He can only execute what the Congress can legislate. Hence the limitations on the scope of congressional power necessarily encumber the executive power of the President as well. This argument is reinforced by explicit constitutional grants of power to
the President to command the armed forces of the nation, to grant reprieves and pardons, to share in the power to make treaties and to appoint officers, to convene either or both houses of Congress, to receive ambassadors, and so forth. The fact that these powers are explicitly granted in the Constitution undercuts the argument that the executive power clause confers inherent executive powers on the President. If the executive power clause did this, what would be the purpose of spelling out all these other powers, which are traditionally associated with the executive? These additional powers would all be redundant. They could all be found in the teeming womb of the executive power clause. Clearly, the argument goes, the framers intended
more he might possess are explicitly stated in Article II. The President has no powers other than the sum of the powers resulting from these two sources. Another argument against the presence of inherent executive power in
Article II is drawn from the opening words of Article III: “The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.” Critics of presidential power highlight the contrast between Article II which vests only “the executive power” and Article III which vests “the judicial power of the United States” (emphasis added). It is the judiciary, not the executive, that enjoys inherent power. There is a judicial power of the United States, the argument runs, and this is the power to apply common law.1 The grant of this inherent power is signaled by the explicit mention of a judicial power of the United States. It is a power that inheres in the judicial system of any nation influenced by the English legal tradition. Article II significantly omits any mention of an executive power “of the United States.” Had the framers of the Constitution wished to confer such inherent executive power on the President, they would have used the sort of language they adopted when they created the judiciary. A final textual response to the expansive view of presidential power is
based on sections 2, 3, and 4 of Article II. Here the argument differs from the considerations, just discussed. The previous arguments conceded that the executive power clause does indeed grant complete executive power to the President. Having made this concession, the thrust of the previous arguments was to limit the scope of executive power by confining the meaning of the word to executing the will of the Congress and thereby to deny any additional, inherent powers to the President. The argument here maintains that other sections of Article II cannot be reconciled with the claim that the executive power clause gives all executive power to the President-no matter how narrowly one defines executive power. The most important constitutional clause in support of this position states
that the President “shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.” This language makes it rather clear that the President himself is not to execute the laws, but is to see to it that others do so; and to assist him in doing just this, the Constitution empowers the President to commission officers. These constitutional provisions are followed immediately by the impeachment clauses which clearly describe the President as a legally accountable officer who “presides” (as a President should) over an executive establishment that carries out the laws mandated by Congress. This is the textual basis for the clerkship view of the presidency. It is reinforced by the explicit constitutional provision for “executive departments,” each of which will be headed by a single “principal officer.”
