Julian Davis Mortenson (University of Michigan Law School) has posted Article II Vests Executive Power, Not the Royal Prerogative (Columbia Law Review, forthcoming) (99 pages) on SSRN. Here is the abstract:
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.
Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the 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.
There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.
An important response to this article.
UPDATE: Seth Barrett Tillman expressed a similar view in a post at the New Reform Club that I had previously missed: The Old Whig Theory of the Executive Power. Here is the introduction:
The Old Whig position is that the express powers (including the veto) vested in the presidency by Article II are not part of the “Executive Power” (except in the limited sense that they are powers appended to the presidency for him to execute). Today, we think of those powers as executive merely because we are used to the President doing them.
Those express powers are merely appendages to the presidency—in much the way that the Chief Justice presides over presidential impeachments (outside the context of the Judicial Power vested in the federal courts by Article III) and in much the same way that the Vice President presides over the Senate and has a vote on equal division (although the VP is not a constituent part (or member) of Congress or the Senate (as defined by Article I).
And later:
The Old Whig theory stands in opposition to the Hamiltonian theory of a core or residium of undefined executive power which exists absent an express grant of Article I, Section 7 authority from Congress. The Old Whig position is a unitary-executive-type position, like Hamilton’s, but it permits that executive to be a weak one, albeit one which cannot be stripped of the powers expressly granted by Article II.
I think this captures very well the difference between Professor Mortenson's position in the article and my (Hamiltonian) view.
Posted at 6:40 AM