The Ill-Made Prince: A Modest Proposal for a New Article II

54 Pages Posted: 8 Aug 2009 Last revised: 22 Feb 2010

See all articles by Garrett Epps

Garrett Epps

University of Baltimore School of Law

Date Written: August 7, 2009

Abstract

This Article looks at the language of Article II and reviews briefly what we know of the debate surrounding its drafting and ratification. It illustrates how, only a few years after the Constitution went into operation, advocates of broad presidential authority proposed a view of the office that owes almost nothing to the text and that grants the president authority based almost solely on non-textual sources. The Article further suggests that the method of election and succession in the text was ill thought out, and owes its existence to the Constitution's fatal embrace of slavery, and has failed the nation repeatedly in ways that have undermined the legitimacy of the office and have on occasion brought the country to the edge of civil violence.

The Article further examines what the elliptical text of Article II actually tells us about a president’s authority. It notes that the huge edifice of executive power has been erected largely on a non-textual foundation - a kind of collective agreement that the American president must have certain powers. This has, in some scholarly and political circles, hardened into political dogma. The Article then notes a malign interaction among three features of the office - the reticence of Article II, the complexities of the executive theories spun to fill the textual silence, and the relatively primitive methods of political accountability set up by the Constitution. The stew formed by these three elements, I suggest, makes the powerful presidency indefensibly immune from full democratic accountability. This, I argue, has led to repeated dangerous and regrettable episodes in which the president has felt empowered to act in the absence of public assent to consequential decisions or even in defiance of properly expressed majority opposition. The latter case I refer to as the “runaway presidency,” and I suggest that, like many of the features mentioned above, it is a dangerous flaw in a constitutional system designed to operate and maintain a modern democratic nation.

Finally, I modestly suggest that we deal with the flaws I outline by scrapping Article II in its entirety and adopting a new one. To repair the dangerous gaps and mistakes in the current Article II, I propose changing the provisions for presidential election and succession, and laying out in detail the powers of limitations of the presidency with at least the specificity the Framers used in Article I, §8, which empowers Congress. Finally, I suggest that we break with what I regard as the destructive notion of the “unitary executive” by dividing the executive power under the Constitution between two actors - a president who will continue has head of state and chief of government and an elected attorney general who will, under the direction of the president, execute the legal policy and law-enforcement operations of the federal government while maintaining democratic legitimacy and a suitable independence of the president. To compound my audacity, I offer for discussion a proposed text of the new Article II as an appendix to the Article.

A modest agenda indeed.

Keywords: presidency, executive, Constitution, Article II, Hamilton, Bush

Suggested Citation

Epps, Garrett, The Ill-Made Prince: A Modest Proposal for a New Article II (August 7, 2009). Available at SSRN: https://ssrn.com/abstract=1445643 or http://dx.doi.org/10.2139/ssrn.1445643

Garrett Epps (Contact Author)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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