With the inauguration of a new president and the bracing start of a new executive administration, now seems an especially important time to review the powers of the office of president of the United States—both the true, constitutional powers of the office and the false, pretended, or distorted ones that exist in popular (or presidential) imagination.
In essays published today and tomorrow, I set forth the Constitution’s actual provisions, logic, and structure with respect to the position and powers of the presidency. Along the way, I also explode some myths and errors concerning these powers.
In certain respects, the president’s powers are actually greater than is commonly understood. In other, critical respects, the president’s true constitutional powers are far fewer, narrower, and more restricted than modern practice would indicate. Now more than ever, with a novice and headstrong president—one who possesses neither political experience nor basic constitutional literacy and who has not given evidence of possessing either careful deliberative temperament or good judgment—it is important for the nation to get the Constitution’s actual boundaries of presidential power right.
I consider four main points. In today’s essay, I first discuss the president’s law-executing power—the core of the “executive Power” that Article II vests in the president alone, as the unitary head of an executive branch subject to his plenary direction and control. I then take up the president’s independent constitutional power and duty of faithful constitutional interpretation. Tomorrow, I address points three and four. The third concerns the president’s constitutional powers with respect to war and foreign affairs and the fourth is the vital constitutional checks that other branches and institutions of government have on presidential power.
Executing the Law—Not Making It
Article II’s first words vest in the president alone the “executive Power” of the United States. He is charged with the duty to “take Care that the Laws be faithfully executed,” and obliged to swear a constitutionally prescribed oath to “faithfully execute the Office of President of the United States” to the best of his ability, and to “preserve, protect, and defend” the Constitution of the United States.
These provisions comprise the sources of the president’s law-execution power. The core of the “executive Power” is the direction and supervision of the execution of the laws of the United States, including the Constitution as “supreme Law of the Land.” The president is to “take Care” that the laws be executed “faithfully.” The president is obliged to enforce laws enacted by Congress in accordance with their terms, yet it seems that he can exercise some discretion and judgment in his enforcement. The exact boundaries of allowable and forbidden presidential discretion in law execution are murky at the edges, but several propositions are clear.
First, the president may not enact a law, or make a decree having the force of law, on his own. The Constitution vests the executive power in the president, not the legislative power. What, then, are “executive orders,” so much in the news these days? Constitutionally, the president may make proclamations concerning the manner and precise direction of law-execution. Yet sometimes such orders spill over into quasi-lawmaking. The examples of such lawmaking, many and varied, long predate the Trump administration. But to the extent that executive orders engage in lawmaking, not supported by grants of discretion or authorizations for regulatory authority conferred by Congress’s statutes, they are unconstitutional.
President Trump’s executive orders concerning exclusion of aliens and refugees, while hugely controversial on policy grounds and subject to valid criticism for the clumsiness of the manner in which they were executed, are probably not unconstitutional on this ground, for the simple reason that the statutes in this area grant the president enormous discretion. Existing law explicitly authorizes the president to suspend entry into the country of “all aliens or any class of aliens” for “such period as he shall deem necessary,” or to impose “any restrictions he may deem to be appropriate,” whenever he finds that entry would be “detrimental to the interests of the United States.” One can disagree with the wisdom of this statute’s wording or the manner in which President Trump has exercised his authority, but it is hard to argue that Congress did not give him such authority.
There are other proper executive orders—such as an order rescinding the improper lawmaking of a prior administration or one concerning internal executive branch structure, policy, organization, or management. Because Article II grants executive power to the president alone, all executive branch employees work for, are subordinate to, and can have their actions directed or countermanded by the president. Thus, President Trump’s order several weeks ago discharging the Acting Attorney General for refusing to defend the administration’s legal position was within his constitutional authority as president. So too, Trump’s call for the resignation of the US attorneys in every district was perfectly within his right. All presidents get to control those who act in the name of their administrations.
The president can also issue lawful executive orders to the extent that they fall within his constitutional powers as military “Commander in Chief.” Lincoln’s “Emancipation Proclamation”—declaring “forever free” all slaves held in Confederate-controlled territory during the Civil War—was a military order concerning the conduct of war and the confiscation of enemy resources in areas controlled by enemy forces. Such an order was plainly within the scope of the president’s power as Commander in Chief. But Lincoln was clear-eyed about what justified such an order and its bounds. He could not abolish legal slavery itself: he could not repeal state or federal laws by decree. Nor could he order slaves freed outside areas of military conflict. It took a constitutional amendment to ban slavery nationwide.
In sum, the president may issue executive orders (1) concerning execution of the laws, within the scope of authority conferred by those laws; (2) rescinding prior executive orders he judges unlawful under these criteria; (3) concerning the structure or internal administration of the executive branch; and (4) in the lawful exercise of his separate constitutional power as military Commander in Chief.
Can the President Choose Not to Execute the Law?
The president may not make laws. But may he effectively un-make them by declining to execute them? The Constitution’s answer is no. This is a second core proposition concerning executive power under the Constitution: there is no general presidential power or prerogative simply to decline or refuse to execute the laws of the United States on policy grounds.
For the same reasons that the president lacks power to make laws, the president may not rescind, repeal, amend, rewrite, or modify federal law either. That would be simply a different form of the exercise of legislative power—the lawmaking power exercised in reverse.
To be sure, presidents have violated this core constitutional principle, too. The courts have sometimes, but not always, called presidents to account on this score. In 2014, the Environmental Protection Agency was scolded by the Supreme Court for its rewriting of provisions of the Clean Air Act. President Obama rewrote numerous provisions of Obamacare and largely got away with it. He also altered the content of immigration law by granting certain undocumented aliens legal status. (A federal appellate court struck down that action as illegal, and the Supreme Court affirmed the lower court’s decision.)
The fact that presidents have occasionally abused legitimate executive enforcement discretion by perverting it into a legislative power to repeal or rewrite laws does not mean that the Constitution’s separation of powers has been changed by practice. It simply means that presidents have violated the Constitution on occasion. Past violations do not justify further ones.
At the same time, however, there is a competing third principle: the responsibility to execute the law faithfully can be taken to imply some zone of good-faith enforcement discretion and practical judgment. The difficulty is in knowing where to draw the line. On the one hand, there is a duty to execute the laws faithfully, which refutes any general power of the president simply to ignore them. On the other hand, the duty of faithful execution likewise implies some measure of good-faith judgment and discretion. Where does one principle leave off and the other begin?
This is one of those constitutional questions that is properly left to the political process: Congress and the president can press their respective positions, each with the powers at their disposal, as to where the line is drawn in a particular instance. That is a part of the separation-of-powers struggle contemplated by the framers.
This leads to another essential question: may the president refuse to execute statutes of Congress on constitutional grounds—that is, based on his determination, in the exercise of his independent constitutional judgment, that an Act of Congress violates the Constitution?
The Most Dangerous Branch
Over two decades ago, in one of my first published articles as a young law professor, I wrote at length about what I called “The Most Dangerous Branch.” I argued that the president possesses an independent power of constitutional interpretation. In Federalist 78, Alexander Hamilton called the judiciary the “least dangerous” branch, since it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” By this standard, I argued, the executive is the most dangerous branch, possessing vast powers and vast independence of constitutional judgment.
The power of constitutional interpretation is not exclusively vested in the judiciary. Contrary to the modern myth of judicial supremacy, the power of constitutional interpretation is possessed by each branch as a consequence of its other constitutional powers and its oath of fidelity to the Constitution. As a consequence of the separation of powers, no branch is bound by the constitutional views of any of the others. As James Madison put it in The Federalist No. 49: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
The President of the United States exercises his independent power and duty of faithful, responsible constitutional interpretation in many ways. In exercising his powers to issue vetoes, grant pardons, and faithfully execute laws and lawful judicial decrees, the president rightfully may interpret the Constitution independently of the views of both Congress and the courts. In this way, he can check what he concludes in good faith are the unconstitutional or unlawful actions of these other branches.
That is a dramatic proposition of broad presidential independence in constitutional interpretation. But I remain convinced that it is correct, notwithstanding the disturbing implications it might have when exercised by a president like the one now in office.
Judicial Review and the President’s Responsibility to Interpret the Constitution
Perhaps the easiest way to understand the president’s independent power of constitutional interpretation is to consider the simple, elegant syllogism that constitutes Marbury v. Madison’s argument for judicial review.
Marbury’s logical argument consists of three premises. First, constitutional supremacy: the Constitution is the supreme law of the land and prevails over any other source of law or government action contrary to it. Second, the independence of the branches: no branch is literally bound by what it considers in good faith to be the constitutional violations or errors of another branch. Third, the oath to support the Constitution refutes any conclusion that one branch of government could be considered bound, in the exercise of its duties, to reach a result contrary to the Constitution its officials had sworn to uphold.
This concise Euclidean proof yielded the theorem of “judicial review” of the constitutionality of acts of Congress: the Constitution is supreme law, and the courts have the duty to apply that law in cases that come before them, as superior to any inconsistent law. Courts are independent in the exercise of their separate constitutional powers and thus cannot be bound by what they conclude are Congress’s constitutional misjudgments. Judges swear an oath to support the Constitution, and it would be a “solemn mockery” to prescribe such an oath and forbid the exercise of independent judgment with respect to the exercise of the duties it imposes.
Marbury is often invoked today as establishing the Court’s supremacy in constitutional interpretation, but nothing in Marbury, in the text or structural logic of the Constitution, or in historical evidence of the original intentions or understanding of its framers supports this assertion.
Marbury’s argument is flawlessly logical. But what is often overlooked is that the exact same reasoning applies to the president when he exercises his independent constitutional responsibilities.
If the president concludes that an act of Congress is unconstitutional, he should veto it. If it was signed into law by a prior administration, he should refuse to execute it and not defend it judicially. If individuals have been convicted under an unconstitutional law, the president should pardon them. Likewise, if the president concludes that a decision of the judiciary is contrary to the Constitution or other federal law, he should not follow or execute that decision in the exercise of his independent constitutional powers. Such action flies in the face of our modern constitutional practice, but it follows inexorably from the reasoning of Marbury v. Madison.
Obviously, the president should not lightly conclude that the Supreme Court has it wrong. But there is certainly precedent for this: Abraham Lincoln declined to abide by Chief Justice Taney’s decision invalidating the president’s suspension of the writ of habeas corpus at the outbreak of the Civil War. Lincoln and the Civil War Congress likewise acted in defiance of the Supreme Court’s decision in Dred Scott v. Sandford by prohibiting slavery in federal territories.
The power of the president to engage in independent constitutional interpretation—and to act on that interpretation—is a fearful and dangerous power. It carries with it a duty of responsible, faithful presidential constitutional interpretation. Interpretive power does not imply interpretive license or the power to do whatever one wills. That common misconception is the product of sloppy thinking fueled by the Supreme Court’s claimed judicial supremacy, coupled with its abuse of interpretive power. Properly conceived, the executive’s power of constitutional interpretation is (like the judiciary’s) a coequal power of good-faith interpretation, not a license to say anything one wants in the name of the Constitution.
What If We Have a Bad President?
There is less to fear from any one branch’s exercise of independent interpretive authority when one is reminded that the other branches are armed with the same right and with effective powers with which to check the abuses of the others. Yet the president is strategically positioned within the constitutional scheme, armed—literally and figuratively—with the most powerful and dangerous tools to put his views into effect and defeat the other two branches in the separation-of-powers struggle. The executive is truly the Most Dangerous Branch.
This is not necessarily a problem. The framers deliberately gave the president independence, unity, and vast powers. This is only a problem if the office is badly filled. The framers designed the presidency with George Washington in mind and hoped that they had crafted a presidential selection mechanism that would produce future good presidents. As Hamilton (perhaps too cheerfully) wrote, the “electoral college” was crafted so as to afford “a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications” or whose talents are merely “for low intrigue.”
Well, what if we have a bad president? Donald Trump is, to put it mildly, no George Washington. Unfortunately, we need to face constitutional reality: in terms of the Constitution’s actual assignment of powers, the quality of the actual officeholder makes no difference. An incompetent or foolish president possesses the same constitutional powers as a wise, good, and virtuous one. The fact that the Constitution confers vast powers on the president, including interpretive independence from the other branches, is simply one more reason (among many) why it is extraordinarily important to choose a qualified, competent, responsible person for that office.
If the system fails in that regard, the president’s power of constitutional interpretation is a dangerous and disruptive one to place in unfit hands. But that concern is as nothing compared with the dangers of placing in unfit hands the president’s nearly plenary power over foreign affairs and as military Commander in Chief. I take up those powers tomorrow.