The previous post pointed out that the recent case of Trump v. Slaughter raised fundamental questions about the essence of executive power under the Constitution and the foundation of separation of powers for the structure of constitutional government.
The text of the Constitution: Article II and the “Executive Power” (or “Vesting”) Clause
To address these questions, one must start with the Constitution’s Article II about the executive branch. A critical issue is whether the Constitution creates a “unitary executive,” one in which the President is the head of that branch and controls all other officers (cabinet secretaries, ambassadors, federal prosecutors, etc.) who are not themselves either “constitutional” officers (i.e., the Vice-President) or judges under Article III of the Constitution. The first sentence of Article II states, “The executive Power shall be vested in a President of the United States of America.” Although some professors and judges have proposed a bland formalistic interpretation of this language, the generally accepted version holds this to be a grant of an express substantive power to the President that includes various other powers through implication. A related clause in Section 3 of Article II imposes on the President the duty to “take Care that the Laws be faithfully executed …” (the “take care” clause). As well, the Constitution’s presidential oath that he will “preserve, protect, and defend the Constitution ….” has been used by Presidents, especially Abraham Lincoln, to justify executive action even without more specific authority from the Constitution or Congress.
That language in the first sentence of Article II stands in stark contrast to the grant of powers to Congress set out in Article I of the Constitution. The first sentence there reads, “All legislative Powers herein granted shall be vested in a Congress of the United States….” (Emphasis added.) Unlike the executive power clause, that sentence confers only powers listed thereafter; it is not itself a general grant of legislative power.
It is next necessary to define what “the executive power” clause confers on the President, using the common understanding of those words at the time the Constitution was adopted. “The executive power” is a term of constitutional/political character, so recourse would be to contemporary legal treatises, judicial opinions, early state constitutions, English constitutional custom as evidenced by long and continuous political practice, and perhaps even the Articles of Confederation, to determine what those who framed the Constitution understood it to mean. Regarding the nature of “executive power,” they often referred to the powers of the early state governors and of the British monarch to the extent that those powers would fit within the new American republican constitution. As well, today one might consider the records of debates in the state ratifying conventions, the debates at the Philadelphia drafting convention as recorded in the notes of James Madison, and contemporary essays on both sides of the effort to approve the Constitution. One such collection of advocacy essays is The Federalist.
Alexander Hamilton’s advocacy for a unitary executive in The Federalist
Alexander Hamilton, a stalwart supporter of executive power, to put it mildly, thoroughly addressed the scope of the executive power within the unitary executive theory first in The Federalist No. 70, and a few years later in a series of essays under the clever pseudonym Pacificus. Hamilton thought the first sentence of Article II definitive. It vested the executive power in “a” President, not a collective of any sort. This, too, contrasts with Article I of the Constitution, which divides the legislative branch into two components, the House of Representatives and the Senate. As executive power is the essence of government, energy is the essence of executive power. Energy in the executive produces vigor in the administration of law required by Article II’s duty to enforce the law and expeditiousness in response to necessity. Energy is most effectively present in a unitary executive, with the President in charge of subordinates who carry out his policies. The President is chief executive, or Chief Magistrate, in Hamilton’s words.
Too much energy in the executive, however, can threaten republican government and personal liberty. The secret is to find the constitutional “sweet spot,” a version of Aristotle’s golden mean. In his contributions to The Federalist, Hamilton pulled his punches about executive powers because the objective was to secure the consent of the state ratifying conventions for the new Constitution, and Hamilton already had a reputation as a closet-monarchist. He cast the President as having enough constitutional power to be effective but under sufficient constraints not to be dangerous. Indeed, in The Federalist No. 67, he ridiculed “extravagant” misrepresentations and “counterfeit resemblances” by which opponents had sought to demonize the President as a potentate with royal prerogatives.
The Antifederalists’ unsuccessful effort for a multiple executive structure
A number of Antifederalists, including some at the Philadelphia Convention in 1787, agitated for a multiple executive, instead. They had a lavish panorama of historical examples to illustrate the dangers of energetic executives. Single executives were the hallmark of monarchical systems. Virginia’s governor and convention delegate Edmund Randolph referred to a single-executive structure as the “foetus of monarchy.” Multiple executives, they opined, were better suited for republics.
There have been numerous versions of multiple executives. One, such as the consuls and tribunes of Rome or the kings of Sparta, were of equal dignity and could veto each other’s acts. Another, more favored by the states and based on the republican variant of the British colonial model, involved a governor-and-council structure. Yet another model, found in many current state constitutions, is to have various officers, such as the attorney general, treasurer, and secretary of state elected directly by the people separately from the governor. Each officer then has his own constitutional legitimacy and exercises the office independent of the governor. Of course, a multiple executive is no guarantee that republican government will survive, as the Antifederalists knew. Neither the two-consul system nor using the two triumvirates, first with Julius Caesar and, subsequently, with Octavian, saved the Roman Republic.
As anyone who has worked on a committee or sat in a meeting knows, the more people that are involved, the less of substance gets done, and the exponentially longer it takes to do so. Veterans of faculty meetings can bear particularly melancholy witness to those truths. Hamilton allowed that multiplicity nevertheless is welcome in a legislative body, where deliberation and the “wisdom of the multitude” are valuable to reach a “right” decision and to protect the rights of the minority. Indeed, haste in the passage of laws will result in badly written legislation with unintended consequences, as well as in laws that may be against the people’s wishes.
In the executive, however, delays and indecision are damaging. As a member of General Washington’s staff during the Revolutionary War, Hamilton personally must have been keenly aware of the incapacity of the Continental Congress and even the Board of War, its agency, to direct the war effort reliably and effectively. A multiple executive structure also courts the evils of faction and division, undermining stability. At the same time, as Hamilton warned, a successful cabal among multiple executives can magnify their danger to liberty.
It is crucial, then, that the executive be unitary, to provide the requisite energy and vigor to accomplish the objectives of government expeditiously and to avoid undermining the respect for law by haphazard and desultory administration of law. Hamilton also asserted that there are other benefits from a unitary executive, ones that provide the most effective protections of liberty. Those are transparency and accountability. It has been said that success has many parents, but failure is an orphan. Having a single decision-maker shines the light of responsibility on him: “The buck stops here.”
For Hamilton, the best protection against abuse by an overly energetic executive was, predictably, the vigilance of the people expressed at the next election. But they cannot exercise that vigilance when multiple parties are pointing fingers at each other the way that members of Congress do when policies they have been championing become political liabilities. Nor can responsibility readily be gauged when politically tough issues are shunted onto appointed commissions whose “recommendations” the accountability-averse politicians gladly treat as binding.
Alexander Hamilton’s advocacy in his Pacificus letters for broad implied executive powers within the unitary executive structure
In 1793, an opportunity presented itself to Hamilton to press further the concept of broad executive power in the President as the chief executive. The event was President Washington’s Neutrality Proclamation. Washington, concerned over American military impotence, unilaterally proclaimed friendship with both sides in the naval war between France and Great Britain. Critics claimed that Congress needed to declare neutrality, just as Congress would need to declare war. Hamilton responded with seven letters to a Philadelphia newspaper, the Gazette of the United States, using the clever pseudonym Pacificus (the peaceful one) to defend Washington.
Freed of the need to maintain the politic tone he had—usually—employed during the debates in 1787 over the Constitution’s adoption, Hamilton staked out a very strong position in favor of the executive in these Pacificus essays. He wrote that the President has all executive powers as head of the executive branch unless either the Constitution expressly limits his action or Congress does so by acting under one of its express constitutional powers. Any constitutional language which gives Congress a role in limiting the President’s powers should be construed strictly. The Constitution does not mention neutrality proclamations. The power to declare war historically was an executive function, although the Constitution grants it to Congress. Congress can choose to declare war on Great Britain or France, but, until Congress does so, the President can declare peace.
Anticipating arguments that other traditional executive powers are expressly listed in Article II, such as the power to appoint officers of the United States and the power to make treaties, Hamilton pointed out that those powers do not derogate from the core general grant of executive power to the President. If those powers were not mentioned in the Constitution at all, the President could still appoint officers of the United States or make treaties by himself under his “executive power.” These powers are separately enumerated because they also require action by another branch, thereby presenting special and limited exceptions. For example, the President cannot make treaties alone; he must get two-thirds of the Senate to consent. He cannot appoint officers of the United States alone; he must get a majority of the Senate to consent. Precisely because these are limitations on the President’s general executive power, they must be read narrowly. It is the President’s role to be the chief magistrate, as confirmed also by the “take care” clause, which charges him alone with the duty to “take care that the laws be faithfully executed.” Hamilton’s position in these essays is remarkably similar to that of James Madison in 1789 during debates on executive power in the First Congress.
Jefferson read these essays with horror. As Washington’s Secretary of State, he was not in a position to oppose Hamilton publicly. At the insistent prodding of the agitated Jefferson, a very reluctant Madison, perhaps recalling that he made those same Hamiltonian arguments just four years earlier, responded in five Helvidius essays published in the same Philadelphia newspaper. He wrote that Washington’s proclamation infringed Congress’s power to declare war, which he called a legislative power. More broadly, Madison claimed that the President possessed only the specific powers granted in Article II of the Constitution plus any powers which Congress constitutionally authorized him to exercise. The executive power was merely the power to enforce laws passed by Congress, the branch of government closest to the people. He construed the constitutional powers of the President very narrowly and rejected the implied executive powers theory. He was ignored by the administration.
Academics and some judges have come up with various nuances, layers, and degrees of implied executive power theories over the years. Others, such as the dissenters in Slaughter, still cling to the stunted Madisonian interpretation of executive power when politically convenient. However, Hamilton’s strong theory is the orthodox view.
The next essay in this series will move from the constitutional text and theory of executive power and the unitary executive structure to an examination of the gradual emergence of constitutional custom based on practical experience, especially through the political matter of the President’s power to remove federal officers.
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