Mortenson on Executive Power

Julian Davis Mortenson, University of Michigan Law School, has posted The Executive Power Clause, which is forthcoming in the University of Pennsylvania Law Review 119 (2019):

Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security.

This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives — including not just records of drafting, legislative, and ratification debates, but also committee files, private and official correspondence, diaries, newspapers, pamphlets, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent.

The Founding generation understood “executive power” to mean something both simple and specific: the power to execute law. This authority was constitutionally crucial, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some other authority. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

--Dan Ernst.  H/t: Legal Theory Blog