For our look at the presidency. This seems to be a challenge to our understanding on the inherent powers of the president.
- Click here for the article.
The abstract:
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.
Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.
There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.
For more, click here.
Of special note:
Let's start with some background. Basically, the Executive Power Clause has three competing
interpretations.
- The cross-reference thesis. On this view, the clause has no standalone content. It simply refers to the more specific powers listed later in Article II.
- The law execution thesis. On this understanding, the clause grants exactly what its grammar suggests: the power to execute the laws.
- The royal residuum thesis. This view reads the clause to include all of the powers typically held by an eighteenth-century executive—particularly those relating to foreign affairs and national security—unless specifically revised or reallocated elsewhere in the Constitution.
- Zivotofsky II and the Vesting Clause Theory of Presidential Foreign Relations Power.
- prerogative.
