Jerry Louis Mashaw, Yale Law School, has posted a new article, Government Practice and Presidential Direction: Lessons from the Antebellum Republic. Here's the (long!) abstract:
In Association of Data Processing Service Organizations, Inc. v. Camp Mr. Justice Douglas famously remarked, "Generalizations about standing to sue are largely worthless as such." Justice Douglas went on to say, however, that one generalization was necessary, that is, that the question of standing had to be considered within the framework of Article III of the Constitution My sense is that Justice Douglas' skepticism about generalizations applies with even greater force when the question is the extent of the President's power under the U.S. Constitution to direct other officers concerning the execution or implementation of federal law. But, one generalization might be hazarded: Almost anyone who addresses the topic argues from historical practice, not merely from the text of the Constitution or from judicial pronouncements. This practice of relying on practice is understandable, perhaps unavoidable. In his famous, and often-cited, concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, Justice Jackson began by noting, "A judge, like an executive advisor, may be surprised by the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Judicial decisions concerning the President's directive power are sparse. When looking for guidance a lawyer will often come up empty, or be required to extrapolate creatively from dictum in some tangentially related context. Similarly, the Constitution is remarkably Delphic where administration is concerned. As I instruct my students at the beginning of every course in Administrative Law, there is a hole in the Constitution where administration might have been. Only two executive officers are mentioned, and the only function given to is the Vice-President is to preside over the Senate and cast a vote in case of ties. The development of the machinery of government is left to Congress in the exercise of its Article I powers. We might combine all the Constitution's textual provisions concerning the Executive - the grant of "the executive power," appointment of department heads who must report on request and the responsibility for faithful execution - to infer a default position in the absence of contrary statutory language: the President is presumed to have authority to assure that lower level officials carrying out executive functions do so in accordance with law. Indeed, I believe that that is a fair inference from the text of the constitution itself. The problem is that this default position fails to answer many of the vexing questions that present themselves once Congress has exercised its authority to create, empower and fund executive offices under its authority in Article I, Section 8, "To make all laws necessary and proper for carrying into execution the foregoing (Article 1) powers, and all other powers vested by the Constitution in the government of the United States, or in any department of office thereof." If Congress provides authority to be exercised by particular officers, can the president nevertheless direct their exercise of discretion, thereby effectively controlling the execution of the law himself? Would such action be assuring "faithful execution of the laws" or the usurping of lawful authority granted to another? Assuming that removal or threatened removal of an officer is one way - and perhaps the most powerful way - for a President to assure faithful execution of the law, does that imply that Congress may place no limits on presidential removal - notwithstanding the Constitution's silence concerning removal save by impeachment? The silence, vagueness or ambiguity of the constitutional text on most matters of operational consequence, and the paucity of judicial pronouncements, means that the issues of presidential directive power are by default addressed largely in Congress and within the executive branch. In these venues of lawmaking and implementation, grappling with issues of presidential authority and congressional power are a part of the ordinary routines of government. Justice Jackson understood this full well from his prior experience in the Justice Department and alluded to it by including "executive advisors" with judges as those who were likely to be surprised by the paucity of useful and unambiguous authority. It was not just judicial and textual authority that Justice Jackson found frustrating. He also noted, "A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other." And yet, like Justice Jackson and his colleagues, we often turn to practice. Surely what people have done in running the government should give us some purchase beyond the narrow decisions of courts, the speculations of scholars, and the self-interested rhetoric of partisans during congressional-presidential struggles. Yet, however sensible our turn to practice for guidance, we should pause to consider just how deeply problematic our reliance might be. The problems occur at two levels. First, what is the normative claim of practice as evidence of what the law is or should be? "Practice", within which I mean to include both repeated prior actions and particularly salient events, are just facts. What gives them the power to bind us even presumptively? Second, assuming the normative force of practice, how is it to be interpreted? If we recognize a practice as ours, and as having a claim on the legal imagination, how are we to give it meaning? By seeking the meaning these actions had for the actors? By close attention to the contexts in which they occurred? By attending to their interpretation by contemporaneous or later commentators? I do not want to dwell on the deep questions involved in what gives practice normative force. I will focus instead on the second difficulty, the difficulty of understanding exactly what the normative claim or reach of a past practice might be. For, the practice of American government has proceeded through the multiple actions and claims of executive and congressional officials in multifarious contexts and over a significant period. It is revealed both by what people did and what they said. And its understanding is illuminated by the background presumptions of the legal literature of the times as well as contemporaneous public reaction. The difficulties of interpretation thus arise not just from the fact, as Jackson noted, that claims and actions are often informed by partisan or institutional self-interest, although that is problem enough. It is also that we have considerable difficulty recapturing the context within which practices arose, were contested, and survived or perished. Each claim about the meaning of a practice must be evaluated against the backdrop of that practice's institutional, ideological, and partisan context. Giving meaning to practice is a formidable task, particularly if that task is understood as a search for general principles that have broad application to issues of presidential directive authority. In the remainder of this article, therefore, I want to illustrate the epistemic difficulties of understanding what a practice means through illustrations from three quite distinctive political periods that preceded the American Civil War: the Federalist period from the founding through John Adams' presidency, the Jeffersonian period from 1801 until Andrew Jackson's inauguration, and the so-called Jacksonian era from 1830 until Lincoln's administration. As we shall see from these examples, some well known, others obscure, deriving uncontested meaning from the practice of any period is almost impossible. In the end, however, I want to argue that recognition of the difficulty of deriving constitutional meaning from governmental practice contains its own normative implications. The very opaqueness of the normative claims of the past demands a particular form of responsibility from lawyers operating in the present. When combined with the knowledge that most issues of executive power will themselves be decided by practice, not by judicial opinions, we who struggle to discern the meaning of past practice have a special ethical duty not to overstate our positions or to ignore contrary evidence. We should recognize that our institutional arrangements have always been more experimental and various than can be captured by a single narrative.