The Virtuous Executive

90 Pages Posted: 3 Oct 2022 Last revised: 9 Jan 2024

Date Written: March 8, 2023

Abstract

As currently conceived, executive power law and scholarship detach the identity of the president from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the president's personal characteristics.

I argue that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good presidents and constrain bad ones, constitutional actors must take into account the president's personal characteristics. Certain character traits—what I call the executive virtues—play an essential role in the proper functioning of Article II and the broader separation of powers. In important ways, these virtues can and should be encouraged by courts, Congress, and other constitutional actors.

In this article, I describe the executive virtues, show how they capture the original understanding of Article II, and argue for their contemporary importance in light of the presidency's ever-increasing power and discretion. I offer a preliminary list of the main executive virtues—loyalty, honesty, responsibility, justice, inclusiveness, and judgment—and describe how the constitutional requirement of executive virtue can be operationalized. For example, I show how questions of executive virtue were central in Trump v. Hawaii (the travel-ban case), offer a revisionist defense of the impeachment of Bill Clinton, and argue in favor of more control over presidential primaries by party elites. I conclude with the observation that, as recent history demonstrates, the lack of presidential virtue can constitute a full-blown constitutional crisis.

Keywords: executive power, Article II, constitutional norms, impeachment, Twenty Fifth Amendment, virtue ethics, Take Care Clause, authoritarianism

Suggested Citation

Rozenshtein, Alan Z., The Virtuous Executive (March 8, 2023). 108 Minnesota Law Review 605 (2023), Minnesota Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4233347 or http://dx.doi.org/10.2139/ssrn.4233347

Alan Z. Rozenshtein (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://www.law.umn.edu/profiles/alan-rozenshtein

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