The Essential Meaning of Executive Power
Saikrishna Prakash | 2003 U. Ill. L. Rev. 701
Scholars disagree about the Executive Power Clause’s meaning. Some scholars claim that the clause does not vest any power but instead establishes the title and number for the apex of the executive branch. Others believe that the clause vests power but are unsure what domestic power it might vest. This article seeks to resolve the dispute by shedding light on the essential, historical meaning of executive power. Although “executive power” was often used to encompass a bundle of powers typically enjoyed by the executive branch, such as foreign relations control and the power to appoint, the phrase most often was used as a shorthand for the power to execute the laws. Indeed, the phrase “execu-tive power” comes from the principal or essential power of an executive—the power to execute the law.
Evidence from the eighteenth century reveals this essential meaning of executive power. European political theorists of that era declared that the executive power was the power to execute the laws. In America, state constitutions and political commentators employed this basic definition. Debates at the Philadelphia and state ratifying conventions also confirm this meaning, with framers and ratifiers repeatedly observing that the President could execute the law by virtue of the executive power. Finally, after ratification, statesmen from all three branches understood that the executive power was the power to execute the laws.
The founders understood that at least two subsidiary authorities flowed from the power to execute the law. Vested with the executive power, the president may execute any federal law by himself. Because the Constitution establishes that the executive power is his, the Constitution authorizes the president to execute any federal law. This constitutionally sanctioned power to execute the law explains why the president is widely regarded as an executive, i.e., an official who executes the law. Moreover, the executive power also enables the president to control other governmental officers who execute federal law. Because only the president has the executive power, others who execute the law derive their authority to execute not from the statutes that create their offices but from the president. This feature of the executive power reveals why the president is properly referred to as the chief executive. Other officials who execute the law are “executive” officers by virtue of their law execution role and because they are the chief executive’s means of executing the law.