The American presidency is a political and constitutional institution. It has been one of the most successful features of our constitution in protecting the liberties of the American people. More than any other branch it has fulfilled the expectations of the framers.
Over the past several decades we have seen a steady encroachment on the executive by the other branches of government. We need look no further than the recent flurry of nationwide injunctive relief by local courts to grasp the point. This process has substantially weakened the function of the presidency to the detriment of the nation. So…
Deep background on where Article II came from?
What did the framers intend when they established an independent co-equal executive branch in Article II of the constitution? The grade school teaching of our revolution is that it was a rebellion against monarchical tyranny. The intention of the founders in the framing of the constitution was to keep the executive branch weak… But at best this is improper characterization out of historical context.
The neutering of monarchical power was well underway from the time of the Glorious Revolution in England in 1688. It had already begun its steady decline. Parliamentary power was in the ascendency and was well on its way to supremacy. It was clearly in the driver’s seat nearly a hundred years later by the time of the American Revolution was underway. The patriots understood very well their primary antagonist was an over-controlling parliament. In fact, British thinkers at that point had come to consider parliament as the seat of sovereignty.
During the Revolutionary era, American thinkers who initially considered inaugurating a republican form of government tended to follow English thought. Many thought of the executive branch as an errand boy for a supreme legislative branch. Sometimes consideration of the executive was as a multi-member council. It was thought of as a creature of the legislature, dependent on and subservient to that body. Its sole function; carrying out the legislative will.
Experience tempered the theory
Under the Articles of Confederation, there was no executive independent of the legislative power. Things changed by the time of Constitutional Convention of 1787. The real miracle in Philadelphia that summer was the creation of a strong executive, independent of and co-equal with the other branches of government.
The consensus for a strong independent executive arose from the framer’s experience in the Revolution under the Articles of Confederation. They had seen that the war was nearly lost. They understood the Revolution was a bumbling enterprise as a result of a lack of strong executive leadership. Under the Articles of Confederation the states had been mortified. They found they were unable to protect themselves from foreign impositions. Worse still, the states were not taken seriously in the international arena.
They had also seen after the Revolution, too many states had adopted constitutions with weak executives, overly subordinate to the legislatures. Where this had been the case state government had proven incompetent and tyrannical. From these practical experiences, the framers came to appreciate that to be successful a republican government required the capacity to act with energy, consistency, and decisiveness.
They had come to agree that those attributes can best be provided by making the executive power independent of the divided counsel of the legislative branch. They vested the power in the hands of a solitary individual regularly elected for a limited term by the nation as a whole. As Jefferson put it, “For the prompt, clear and consistent action so necessary in an executive, unity of person is essential.”
While there have been some differences among the framers, as to the precise scope of executive powers in particular areas, there was general agreement about its nature. Just as the great separation of power theorists such as Polybius, Montesquieu, and Locke, the framers thought of the executive as a distinct specie of governmental power.
To be sure the executive includes the responsibility for carrying into effect the laws passed by the legislature. That means applying the general rules to particular situations. But the framers understood the executive power meant more than this alone. It also entailed the capacity to handle essential sovereign functions such as the conduct of foreign relations and the conduct of war. Those things cannot be handled by a pre-existing legal regime but demand speed, secrecy, unity of purpose and prudent judgment to meet contingency.
The framers agreed that due to the very nature of the activities involved and the kinds of decision making that are required the constitution generally vested authority over these spheres in the executive. Thomas Jefferson, our first Secretary of State, described the conduct of foreign relations as “executive all together, subject only to the explicit exceptions defined in the constitution, such as the senate’s power to ratify treaties.”
A related power of the executive is the power to address exigent circumstances demanding quick action to protect the wellbeing of the nation but on which the law is either silent or inadequate. Examples would be things such as dealing with natural disasters and plagues. This residual power to meet contingency is the federated power described by Locke in his Second Treatise. Federative power deals with the community as a whole, in relation to beings outside the community.
Finally there are the executive powers necessary to the internal management of the nation. These are the powers necessary for the president to superintend and control the executive function. These include the powers necessary to protect the independence of the executive branch and the confidentiality of its internal deliberations. Some of these powers are explicit in the constitution, such as the power of appointment. The constitution implies others such as the removal power.
One of the aspects of modern progressive polemics is their attacks on the unitary executive theory. A polemic is contentious rhetoric supporting a specific position by aggressive claims and undermining the opposing position. They portray this as a new theory to justify executive power of sweeping and unfettered scope. In point of fact, the theory does not go to the breadth of executive power. Rather it goes to; whatever the executive power may be the president’s must supervise the exercise of those powers.
This is not new and it is not a theory. This is a description of what the framers did in Article II of the U.S. Constitution. Impeachment is not only an attack on a person holding an office. It is, in this case, looking more like an attack on the executive branch by the legislative branch to bring it to heal. We should think long and hard about what the consequences of such a success may be. If we are going to impeach a president; shouldn’t we understand the U.S. Constitution and executive power?