At Constitution Daily, Robert Turner (Virginia): The So-Called “Islamic State” and the Constitution: What Can the President Do? Part One and Part Two.
On executive power, he writes:
… [I]n interpreting an 18th century document, it is important to understand that words sometimes change their meaning over time. Thus, modern readers might be surprised to learn that a signer of the Constitution described it in a letter to a friend as “awful”—unaware that the word originally meant “to fill one with awe” (or, in the modern vernacular, awesome). Thomas Jefferson once used the words “terrific character” to mean “cruel” and “vindictive,” which was true to the Latin root terrificus (“to frighten”). Today, awful and terrific have very different meanings, and we can be led astray if we fail to appreciate such changes when we seek to understand historic document.
…
A classic example of this is the term “executive power.” Today, most Americans assume that when in Article II, Section 1, of the Constitution the Framers vested “The executive Power” in the president, it conveyed the power to “execute” or carry out the laws that would be enacted by Congress. But, to men raised on the writings of John Locke, Montesquieu, and Blackstone, the term “executive power” also included the general management of the nation’s external intercourse—what Locke described as authority over “war, peace, leagues, and alliances.” As Professor Quincy Wright noted in his classic 1922 treatise, The Control of American Foreign Relations: “[W]hen the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant . . . .”
Thus, when in April 1790 President George Washington asked Secretary of State Thomas Jefferson where the Constitution had vested the details of foreign policy not specifically addressed in the instrument, Jefferson noted that the Constitution had “declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate . . . .” From this, he reasoned: “The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”
Of course, I agree (see here [111 Yale L.J. 231], which sets out a good bit of the historical evidence Professor Turner is relying on). Professor Turner and I disagree a little on how this plays out in the war powers area (see his earlier post here), although as to the Islamic State we agree that it doesn't all need to be resolved, as there's a fair argument Congress has approved.
RELATED: At CNN, Paige Hymson: How Thomas Jefferson would have handled ISIS — relying on Professor Turner to suggest that, as with the so-called Barbary pirates in 1801, congressional approval may not be needed because ISIS has declared war on the US: "'Jefferson's belief was that when war is declared against the United States we don't need Congress' approval to fight back,' said Turner." I agree with that too.
ALSO RELATED: Via Kristen Boon at Opinio Juris, here's Jon Stewart's take, on the Daily Show.
Posted at 6:48 AM