50 Pages Posted: 10 Feb 2009 Last revised: 5 May 2014
Date Written: February 9, 2009
This article develops a duty-based theory of executive power. This theory maintains that the Constitution seeks to instill a duty in all executive branch officers to faithfully execute the law. Conversely, the Constitution's framers and ratifiers did not intend to empower the President to distinctively shape the law to suit his policy preferences or those of his party. Rather, they envisioned a model of "disinterested leadership" serving rule of law values. Because of the ratifiers' and framers' interest in preventing abuse of executive power the Constitution obligates executive branch officials to disobey illegal presidential directives and creates a major Congressional role in preventing illegal executive action, primarily by assigning the Senate a major role in appointments and removal.
The duty-based theory fits original intent better than the unitary executive theory popular these days among originalists. Both the Constitutional text and the pre-enactment history show a preoccupation with establishing duties, preventing real abuse, and securing stable administration, rather an effort to establish presidential control over executive branch discretion. The duty-based theory also serves rule of law values better than the unitary executive theory. This article closes with a discussion of the theory's implications for key separation of powers issues involving the execution of law.
Keywords: separation of powers, executive power, unitary executive theory, vesting clause, take care clause
Suggested Citation: Suggested Citation
Driesen, David M., Toward a Duty-Based Theory of Executive Power (February 9, 2009). Fordham Law Review, Vol. 78, 2009. Available at SSRN: https://ssrn.com/abstract=1339892