53 Pages Posted: 15 Jun 2019
Date Written: June 3, 2019
This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.
Keywords: executive power, presidential power, separation of powers, constitutional structure, constitutional law
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