Executive Power

The outstanding feature of Article II of the Constitution is its grant to the president of relatively few, sharply limited powers, a function of the Constitutional Convention’s determination, in the words of James Madison, to “confine and define” presidential power. The president’s powers are lean and meager in comparison to those vested in Congress. This may surprise Americans who have grown accustomed to executive assertions of sweeping powers in both foreign and domestic realms, but two compelling historical reasons explain the framers’ blueprint.


First, James Madison explained in No. 51 of the Federalist Papers that, in a republican form of government, the legislature “necessarily predominates.” A system that exalted the executive could hardly be deemed a republic. Thus, Congress enjoys vast governing powers under Article I of the Constitution, including the lawmaking, appropriations and war making powers.


Second, the founding generation lived in dread fear of executive power, a reflection of their own experience under King George III, whom they viewed as a tyrant, and their keen reading of history, which revealed acts of oppression and exploitation by strong and ambitious executives. The last thing the drafters of the Constitution wanted to do in their invention of the presidency was to create an embryonic monarchy on American soil.


The great purpose behind the invention of the presidency, as the debates in Philadelphia reveal, was to provide an “administrator in chief,” an official charged with the faithful execution of the laws and the authority to make appointments to offices created by Congress. Finding a remedy for the omission in the Articles of Confederation of these key government functions represented one of the principal rallying cries to organize the Constitutional Convention.


The delegates’ work on Article II continued throughout the summer of 1787, but they tackled the presidency at the outset of their deliberations. The framers’ focus on essential executive duties was made plain on June 1, when Gov. Edmund Randolph of Virginia proposed the creation of a president who would enjoy the executive powers under the Articles of Confederation. The question arose: What is meant by “executive” power? A pause ensued as the delegates contemplated the concept. James Wilson of Pennsylvania, second in importance only to Madison as architect of the Constitution, said that executive power embraced merely the authority to enforce laws and make appointments to office. As it turned out, several others repeated Wilson’s definition of “executive power.” No delegate offered a broader conception of “executive power.”


Over the course of American history, the concept of executive power has become swollen with exaggerated claims of authority, including the premise of absolute or unlimited presidential power and the assertion of an executive prerogative to violate the law and the Constitution in order to meet an emergency. But those claims, as we shall see later, are repudiated by the discussions and debates in the Convention, and find no support in our constitutional design. At the founding, the principle of the rule of law enjoyed a precise meaning--executive subordination to the law, which would have been scuttled by the presence of a presidential emergency power. The framers never entertained, indeed, never even flirted with the idea of an executive prerogative power. Their sole aim, grounded on historical concerns, was to corral executive powers, to confine and define them, as Madison pointed out.


What the delegates initiated on June 1, when they reached an understanding of the term, “executive power,” would become the first sentence of Article II: “The executive Power shall be vested in a President of the United States.” The Convention debates in the ensuing weeks pursued various proposals for shaping the presidency and its relationship with Congress. What emerged was an overriding preference among the delegates to create a shared power arrangement between the two branches, which would incorporate the doctrine of checks and balances, in both foreign and domestic matters. This program came at the expense of unilateral presidential power, of course, but this was hardly a concern for the founders who had fought a revolution a decade before, in large measure to free themselves from an imperial executive. We shall examine next week the framers focus on collective decision making in the realm of foreign affairs and national security.


David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

25 views0 comments

Recent Posts

See All