In Search of Prerogative

82 Pages Posted: 28 Oct 2019 Last revised: 28 Sep 2020

See all articles by Ilan Wurman

Ilan Wurman

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: October 18, 2019

Abstract

The standard formalist account of Article II’s executive vesting clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, a handful of scholars have challenged this “residual vesting” thesis by amassing evidence that “the executive power” textually referred only to the power to carry law into execution, and not to the bundle of other royal prerogatives—for example over foreign affairs and national security—enjoyed by the British monarch. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts.

This Article dissents from both views. The executive power was indeed about law-execution, and was not a residual grant of power; but, I argue, both the founding generation and their key guide, Blackstone, likely shared a “thick” understanding of this “executive power.” Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers, and to promulgate regulations, as necessary incidents to law-execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention; to infer that the delegates themselves were unaware of the implications of what they had written; and to ignore the fact that not a single opponent of the Constitution during ratification as much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, may require us to ignore important practices and precedents. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the President probably has more power in the domestic sphere than under a thin law-execution account, but less in foreign affairs than under the residual account.

Keywords: executive power, prerogative, Article II, Vesting Clause, administrative law, presidential power, removal, independent counsels, Youngstown, Steel Seizure Case, Blackstone, foreign affairs, neutrality proclamation, executive agreements, terminating treaties, foreign policy

Suggested Citation

Wurman, Ilan, In Search of Prerogative (October 18, 2019). 70 Duke Law Journal 93, Available at SSRN: https://ssrn.com/abstract=3472108 or http://dx.doi.org/10.2139/ssrn.3472108

Ilan Wurman (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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