The President Who Would Not Be King

Executive Power under the Constitution

Michael W. McConnell

• Publisher: Princeton University Press
• Year: 2020
• ISBN:
  9780691211992
• Topic: Politique et relations internationales
• Subtopic: Gouvernement américain

Vital perspectives for the divided Trump era on what the Constitution's framers intended when they defined the extent—and limits—of presidential power One of the most vexing questions for the framers of the Constitution was how to create a vigorous and independent executive without making him king. In today's divided public square, presidential power has never been more contested. The President Who Would Not Be King cuts through the partisan rancor to reveal what the Constitution really tells us about the powers of the president.Michael McConnell provides a comprehensive account of the drafting of presidential powers. Because the framers met behind closed doors and left no records of their deliberations, close attention must be given to their successive drafts. McConnell shows how the framers worked from a mental list of the powers of the British monarch, and consciously decided which powers to strip from the presidency to avoid tyranny. He examines each of these powers in turn, explaining how they were understood at the time of the founding, and goes on to provide a framework for evaluating separation of powers claims, distinguishing between powers that are subject to congressional control and those in which the president has full discretion.Based on the Tanner Lectures at Princeton University, The President Who Would Not Be King restores the original vision of the framers, showing how the Constitution restrains the excesses of an imperial presidency while empowering the executive to govern effectively.

PART I

The Work of the Convention

1

Creating a Republican Executive

The Difficulty of the Task: Lack of Models

John Dickinson famously told his fellow delegates that in drafting the new constitution, “[e]xperience must be our only guide. Reason may mislead us.”¹ Unfortunately, they had no experience of a strong and effective executive other than a monarch. Under the Articles of Confederation, which governed the new United States until adoption of the Constitution in 1788,² the national government had no executive branch—only a Congress and a tiny judiciary for maritime cases. That does not mean the Confederation government performed no executive functions. Those executive functions were carried out by Congress, or sometimes by committees of Congress, or by ministers appointed by and accountable to Congress. This system did not work well.³ By the late 1780s, all seemed to agree that a new constitution should include a real executive. As Gouverneur Morris told the Convention: “It has been a maxim in political Science that Republican Government is not adapted to a large extent of Country, because the energy of the Executive Magistracy can not reach the extreme parts of it. Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it.”⁴ Every plan for constitutional reform, even the most conservative—the New Jersey Plan—called for creation of an executive of some sort, even if not unitary.

Devising an executive, however, was no easy matter. The framers had long experience in colonial legislatures, making it relatively easy for them to draft a practical scheme for the legislative branch. And many of them were lawyers or judges. They knew what a judicial system should look like. But no one in attendance at the Philadelphia Convention—indeed no one anywhere—had experience with a strong republican executive for a nation the size of the United States. As we will discuss in detail below, British constitutional history unfolded as a series of struggles by Whiggish parliamentarians and judges to curtail the powers of an often arbitrary and grasping royal monarch. Prior to 1774, Americans clung to the formal but outdated ideal of an independent monarch in a mixed regime, as described by Blackstone and especially Montesquieu, and repeatedly petitioned to him for redress against the evil acts of his ministers and the Parliament.⁵ However when the actual King George did not come to their aid but instead affirmatively backed such measures as the Intolerable Acts, Americans turned on the king in fury. They certainly did not want to replicate that kind of executive. As one senator said at the beginning of the First Congress, “we have lately had a hard struggle for our liberty against kingly authority. The minds of men are still heated: everything related to that species of government is odious to the people.”⁶

While the king sparked colonial ire, it was the colonial governors who solidified discontent with broad prerogative powers. The governors’ prerogative powers vis-à-vis colonial legislatures were significantly more formidable than those of the king vis-à-vis Parliament, and they had frequently abused those powers in their own self-interest. Unlike the Hanoverian kings, colonial governors outside of Connecticut and Rhode Island actively exercised a veto over colonial legislation, prorogued and dissolved the popular assemblies where they were unhappy with their actions, and hired and fired judges at will—but at the same time could dispense little in the way of patronage or other attractive enticements for cooperation. This made the colonial governors deeply unpopular figures, hardly an attractive model for a republican executive.⁷

Correcting for the overreach of these colonial executives, state constitutions after Independence made their governors pitiably weak. Madison called them “little more than Cyphers.”⁸ Most had short terms, were saddled with councils, lacked the veto or the power of appointment, and were elected by—and therefore dependent on—the legislature. The governors of New York and Massachusetts were exceptions. These two (and only these two) were directly elected by the people; the other eleven were creatures of the legislature. The governor of New York, the nation’s most powerful executive, served for a three-year term (far longer than normal for the day) and possessed a suite of important unilateral powers: to command the militia and the navy, prorogue the legislature, suspend punishment for crimes pending final legislative decision, recommend legislation, and “take care that the laws are faithfully executed to the best of his ability.”⁹ He shared a veto power with a Council of Revision made up of judges and the Appointment Power with a Council of Appointment made up of senators. Because of the similarity to the final version of the presidency produced by the Philadelphia Convention, it has long been thought that the New York governorship served as a more or less direct model. But note that the Philadelphia Convention voted against direct election by the people, voted against the Council of Revision idea, never seriously considered a Council of Appointments, rejected any executive power to prorogue the legislature, made the President commander of the militia only in limited circumstances, and made presidential pardons final. Even the features of the final presidency most like the New York governorship—namely the Take Care and State of the Union Clauses—were not part of the Virginia Plan, and emerged only later in the summer through the Committee of Detail. To the extent that New York was a model at all, it was inexact and indirect. Certainly, no delegate referred to New York as a model, in the way that George Mason proposed the Virginia Declaration of Rights as a model for a federal Bill of Rights.

To make matters more difficult, James Madison, the driving intellect behind the Virginia Plan, was a quintessentially legislative personality, and had few ideas about how to construct an executive branch. Just before he left for Philadelphia on April 16, 1787, Madison wrote a letter to General Washington outlining his thoughts about the new constitution. He wrote: “I have scarcely ventured as yet to form my own opinion either of the manner in which [the executive] ought to be constituted or of the authorities with which it ought to be clothed.”¹⁰ The Convention had to construct an executive out of whole cloth, with no attractive precedents and little help from its ablest theorist.

In addition to a lack of attractive models, the design of an executive was made more difficult by the existence of three different conceptions of the executive function. In one conception, championed by Roger Sherman of Connecticut, the executive should be “nothing more than an institution for carrying the will of the Legislature into effect.”¹¹ The executive therefore should be chosen by the legislative branch for whatever term the legislature thought best, should be removable by the legislative branch for any reason, and should have no veto power. Such a view may have been widespread in the hyper-Whiggish times immediately following the Declaration of Independence, which is why most state constitutions created such weak executives, but it commanded little support in Philadelphia. A second conception treated the executive branch primarily as a check on the excesses of the legislature—in Madison’s words, “to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form.”¹² Gouverneur Morris put it this way:

One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, agst. Legislative tyranny.¹³

The checking function required an executive independent of the legislative branch—chosen by some mechanism other than legislative vote, not subject to removal by the legislature, with pay protected from legislative diminution—and armed with both a veto and discretion over the means of executing law. A third conception was that of an energetic executive, able to initiate and carry out plans beyond those specified in statutes, such as foreign affairs, military command, the crafting of proposed legislation, and control over the exercise of discretion within the executive branch. This conception required the vesting of significant powers in the presidency. The second and third conceptions were not mutually exclusive.

The Virginia Plan, Resolution 7

Most delegates likely arrived in Philadelphia prepared to deliberate amendments to the Articles of Confederation. Almost immediately, however, the Virginia delegation stole a march, presenting to the delegates a complete design for a new constitution. This Virginia Plan, drafted mostly by Madison prior to the opening of Convention business, dominated the Convention’s deliberations for the first month and a half. It was the seed from which the ratified document grew. Indeed, we can see many elements of the proposal in our constitutional structure today. The executive power plank of the Virginia Plan—Resolution 7—however, was one of the least developed parts of the Plan. It read in its entirety:

7. Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of ___ years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.¹⁴

The structure of the executive under Resolution 7 was incomplete and maybe even internally inconsistent. The resolution did little more than provide that the “National Executive” be chosen by the legislature, be paid, and not be reelected. It left open whether there would be one executive officer or many, the length of the term, and whether there would be any mechanism for impeachment and removal. The philosophy behind Resolution 7 was equivocal; the purpose of fixing compensation and forbidding selection for a second term was to render the executive independent of the legislature, and hence capable of checking legislative excess, but Congress would choose that executive. Would such an executive be independent, or not?

As to the scope of executive power, Resolution 7 vested in the “National Executive” all “Executive rights” that were then vested in Congress under the Articles of Confederation, and in addition gave the executive “a general authority to execute the National laws.” This was more precise than it may sound to modern ears. The first half of the provision transferred to the new executive a suite of powers listed in Article IX of the Articles of Confederation: determining on peace and war, sending and receiving ambassadors, entering into treaties and alliances, regulating captures and prizes, granting letters of marque and reprisal, establishing certain courts, determining the value of coin and the standards of weights and measures, dealing with Indian tribes, establishing post offices, appointing and commissioning army and navy officers, and directing the operations of the land and naval forces.¹⁵ These powers were not new to the federal government, but the Virginia Plan transferred them from the legislative to the executive branch. All were prerogative powers of the British monarch. The second half of the provision—the “general authority to execute the National laws”—was new. Under the Articles, the national government did not have power to enforce its laws. It relied on the states to collect taxes, raise armies, effectuate trade regulations, and otherwise to enforce national law. Under the Virginia Plan, this law execution function would be entrusted to an executive magistrate rather than to the states.

This wording necessarily presupposed that certain powers are “executive” in nature (and others “legislative” or “judicial”), as opposed to the view that powers take on their coloration as executive, legislative, or judicial according to which branch those powers are located in.¹⁶ Otherwise, there would be no way to tell which powers vested in the Confederation Congress were “executive.” Madison, the presumed author of Resolution 7, confirmed this presupposition by informing the Convention tha...