The most dramatic moment in the entire Constitutional Convention in the summer of 1787 involved the presidency, and it happened almost at the beginning of the summer. The Virginia Plan was introduced by Governor Edmund Randolph of Virginia and on the third day of the discussion, they got to Resolution 7, which is the resolution that allowed for the creation of a national executive. Now this provision called for all of the executive powers of the nation to be vested in this national executive, which would probably be a single person. And sitting there was young Charles Pinckney of South Carolina and, reading Madison’s notes, you can almost hear Charles Pinckney gasp in concern. “Why?” he sputters. “That will make the executive a king—an elected king, but still a king.” Now he was principally worried about the fact that among those powers are the powers of peace and war. The executive would be able to take the nation into war all by himself, on his own say-so. He would be able to conduct the foreign affairs of the nation, all by himself, on his own say-so. And Pinckney, along with everybody else in the room, knew that more republics had ended because of military dictatorship—because of republics turning into military dictatorships than any other cause. Think of Julius Caesar crossing the Rubicon. So you can see why Charles Pinckney would gasp.
And then something interesting happens. Madison reports that “a considerable pause ensued.” And this is actually, I think, the most dramatic moment. It isn’t what anybody says; it’s the fact that they’re all sitting there and none of them knows what to say. Why don’t they know what to say? Well, the problem, the issue with the presidency is to create a presidency strong enough and vigorous enough, with the energy, secrecy, and dispatch necessary for being an effective executive, but without becoming a king. It’s such an important problem, but so difficult, and they didn’t really know how to approach it. But the thing that I think really makes the pause poignant is that sitting there, as the chair of the convention, is General George Washington, the man that everyone knew was going to be the first chief executive of the nation. Well, with the most trusted man in America sitting there, how do you engage in a candid discussion about the dangers of tyranny from the new executive? So people are tongue-tied.
It takes Ben Franklin to coax the delegates into expressing their views and coming forward. Here we are, some 230 odd years later and we’re faced with the same question. How can we have a president who is powerful enough to do all of the things we expect from a president, but not one who is going to be effectively a king? The problem seems more acute today perhaps than ever before. I don’t intend to be political but our last three presidents have all been extraordinarily, unusually assertive with respect to pushing the envelope of executive power.
Lawyers in the George W. Bush administration made no secret of their expansive interpretation of the clauses pertaining to the president— leading to the extreme interrogation techniques in the face of contrary congressional legislation, expansive interpretation of the powers to intercept foreign and domestic communications, and imaginary interpretations of statutory language of the 2008 economic crisis.
Bush’s successor, Barack Obama, campaigned for office claiming that he would scale back executive unilateralism. I want to quote him. Obama said “The biggest problems we’re facing right now are to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I am president of the United States of America.”
Once elected, though, it turns out that Barack Obama was no less assertive in using his executive powers—maybe more so than President Bush, and not just in the national security arena, but in many arenas. He talked about using what he called “the pen and the phone” to make national policy outside of Congress. Some of the notable instances in that administration were an undeclared air war in Libya, orders granting lawful status to more than 4 million undocumented workers after Congress had voted that proposal down, environmental regulations stretching the terms of the statutes, some $7 billion in subsidies for insurance companies that had not been voted for by Congress, and, dear to the hearts of many college students, a “Dear Colleague” letter announcing the regulation of the sex lives of college students.
Now Donald Trump comes to the presidency, rhetorically even more aggressive than his predecessors and the most defiant of Congress and the internal checks within the executive branch. And just two years into his administration, the courts are already flooded with lawsuits involving the removal power, the authority to unilaterally revise immigration policy, the scope of the pardon power and authority over criminal investigations, his abrupt shifts in foreign policy and his compliance with the emoluments clause, to name a few. And who knows what there is to come? Donald Trump is many things, but shy about the use of executive power is not one of them.
There are lots of different ways one might think and talk about this question of executive power. I’m going to be doing that in a particular way. I’m going to be focusing on the text of Article II of the Constitution, in light of the history that the framers of that Constitution brought with them, what they knew, what they were responding to, and in light of some of the early controversies about the meaning of that text. I’m not going to argue that that is the only way, or even the best way of talking about the presidency. We might talk about it from a political science point of view—how the institution actually works; we might think of it by looking at the history of various presidencies—the good ones and the bad ones. We might talk about modern-day constitutional doctrine. There are any number of ways to think about the presidency. But I do suggest that there is one way to think about the presidency that would not be helpful, and that is in a partisan way. In a democratic republic, there are going to be presidents we like and there are going to be presidents that we dislike. They are going to be Republicans and Democrats; they’re going to be statesmen and demagogues. But the powers of the presidency do not fluctuate according to our partisan preferences. If it was permissible for President Obama to remake immigration policy on his own unilateral say-so, it is permissible for President Trump to do the same.
“How can we have a president who is powerful enough to do all of the things we expect from a president, but not one who is going to be effectively a king? The problem seems more acute today perhaps than ever before.” — Michael McConnell
As voters, we can indulge our preferences, but as scholars of the Constitution, we must think about the institution of the presidency, not the character of the man who holds the office.
Now, the law of separation of powers is notoriously confused, uncertain and unpredictable. Justice Brandeis was correct when he said—and I quote—“The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.” But if that doctrine has a little clearer meaning, it does not do the job, and much of the uncertainty comes from the text itself.
So I invite you to get out your handy pocket copies of the Constitution and begin by looking at Article II, which starts at Page 9, and just sort of flip through. It’s about three pages long in this version. And I think you’ll agree with me that it is confusing, disorganized and really a bit of a jumble.
Section 1 is the longest section—it’s about how to choose a president and some of the purpose of the office. This was one of the most debated provisions in the summer of ’87. It was a failure; it has been amended at least five times since then and, even now, it’s a subject of contestation. We’re not going to talk about that.
Section 4 is about impeachment. We’re also not going to talk about that. I’m interested in Section 2 and Section 3, which are about the powers of the presidency. As you flip through and cast your eyes across those, there are almost certainly some things that you are going to notice. The first is just how haphazard it was. So Section 2 begins with a paragraph that has three different powers in it that have nothing to do with one another. One has to do with conducting war, one has to do with getting opinions in writing from your officers—what a strange thing to have in a Constitution—and then there’s the pardon power. And they have nothing to do with each other.
The next paragraph is all about appointment—okay, I get that, that seems fairly coherent—but when you turn to Section 3 it is really a grab bag. Most are duties, a lot have to do with Congress, the legislation; there’s something to do with law review there, something about receiving ambassadors and commissioning officers. It looks like they wrote a bunch of random powers on slips of paper and randomly chose them and threw them into the Constitution. Maybe that doesn’t matter. The literary critics among us might care about that, but as a matter of constitutional law, there are some other things that might come to be really striking to us about these two sections of the Constitution.
The first is that the powers, however disorganized they might be, are almost certainly radically incomplete. In marked contrast with the far-sighted powers of Congress in Article I, Section 8—from a perspective of 2018 there are a few more things we might throw in, but basically it’s a pretty intelligent list. It covers almost everything you’d expect a national government to need to be able to do. Look at Article II and it has some really trivial stuff in it—the opinions in writing, the commission—those things don’t really matter very much, but it’s missing some big things. The most conspicuous, but not the only big thing it’s missing, is any discussion of foreign policy or foreign affairs—one of the biggest jobs of the president and the only thing he’s got is a power to receive ambassadors. And then, with the consent and advice of the Senate, he can make treaties and he can appoint ambassadors. But what about all of the other things that are engaged in foreign policy? What about making executive agreements with foreign countries? What about casting your vote in the United Nations? What about deciding what the content of foreign policy is going to be? What about recognizing foreign governments? What about expelling diplomats? What about imposing sanctions?
Most of what the foreign policy of the United States is about seems to go unaddressed. That’s very peculiar. Another thing I think is peculiar—here I invite you to look at the first sentence of Article I about Congress. Article I, Section 1, first sentence: “All legislative powers herein granted, shall be vested in a Congress of the United States … .” All powers herein granted—in other words, here are the powers we’re granting and they’re vested in Congress. But if you look at the first sentence of Article II, which also has a vesting clause in it, it says the executive power shall be vested in a president of the United States. It doesn’t say: “Power is herein granted.” It just says, “The power is vested.” Now I think we need an explanation for that and I would say that these two oddities are closely related.
The first oddity, which has to do with the absence of powers, may be cured by the second oddity, which is, by vesting a general statement of powers in the president: The executive power is the president. And maybe that’s where various foreign policy, and various other important lacuna, actually come from. But doesn’t that bring us right back to Charles Pinckney’s problem? Because if you have this unenumerated, and therefore unlimited and undefined, authority vested in a single person, have we created something that, again, looks like a monarchy? So this is the problem that they faced back in the summer of 1787 and it’s the problem that I hope to at least help to unpack.
This article is an excerpt from McConnell’s Tanner Lecture, delivered at Princeton University in November 2018.
To watch the lecture, go to: https://stanford.io/2wywxDZ