Article II Vests Executive Power, Not the Royal Prerogative

99 Pages Posted: 11 Feb 2019 Last revised: 12 Jul 2019

Date Written: February 4, 2019

Abstract

(This is Part 1 of a two-article series. The second installment — also available on SSRN — is called “The Executive Power Clause.”)

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.

Keywords: Article II, president, vesting clause, executive power, presidential power, separation of powers, Founding, history, originalism

Suggested Citation

Mortenson, Julian Davis, Article II Vests Executive Power, Not the Royal Prerogative (February 4, 2019). 119 Colum. L. Rev. 1169 (2019). Available at SSRN: https://ssrn.com/abstract=3328945

Julian Davis Mortenson (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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