Take Up Your Pen: Unilateral Presidential Directives in American Politics

Chapter 2. The Constitutional Executive

chapter two ................. The Constitutional Executive This power to act according to discretion, for the public good, without the prescription of the law and sometimes even against it, is that which is called ‘‘prerogative.’’ —John Locke, Second Treatise of Government (1690) When the legislative and executive powers are united in the same person . . . there can be no liberty. —Montesquieu, The Spirit of the Laws (1748) This chapter examines the question of the place of unilateral presidential directives in the broader constitutional order. These directives do not obviously comport with the U.S. Constitution. After all, in a system of limited government characterized by a separation of powers and checks and balances , how can the president unilaterally make law by a mere stroke of the presidential pen, even in the face of significant congressional opposition? Moreover, unilateral presidential directives are not mentioned in the Constitution , yet they have come to be regarded as a legitimate constitutional tool and a basic prerogative of the presidential office. This chapter examines the constitutional nature of the presidency in order to ascertain how the American constitutional order may or may not accommodate unilateral presidential directives and whether the apparent tension between them can be resolved. As we will see, an examination of the constitutional text, its political-theoretical pedigree, and its history may somewhat clarify but cannot altogether resolve the issue. American constitutionalism may accommodate unilateral presidential directives, but it cannot do so easily. 30 Chapter 2 The Executive in the Constitution The Constitution’s treatment of the presidency is almost entirely contained in Article II. Whereas Article I spells out the powers and responsibilities of the legislative branch in considerable detail, Article II is infamously brief and ambiguous. According to Edward Corwin, ‘‘Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that constitution makers ought to leave considerable leeway for the future play of political forces, it should be a vision realized.’’1 Article II is barely a thousand words long, and almost half of it is devoted to the mechanics of presidential elections and succession. The portion that describes the president’s powers and responsibilities is quite brief. It notes a variety of particular presidential powers, but it makes no mention of unilateral presidential directives per se. Yet even though such directives are not explicitly provided for in the Constitution, they may nevertheless be consistent with its overall design, and there are several possible warrants for unilateral presidential directives in the constitutional text. One such warrant concerns the president’s legislative powers. Article I appears to reserve ‘‘all legislative powers’’ to Congress, and insofar as executive orders and proclamations amount to executive lawmaking, they seem to violate a strict separation of powers. However, Article II accords the president some legislative powers. For example, it gives the president the power to recommend legislation, to veto legislation, and to convene Congress . It also provides for the State of the Union address, which has come to be used to announce a president’s legislative agenda, and the president may even in some sense preside over the Senate through the vice president, who since the Twelfth Amendment may be regarded as his subordinate.2 These functions clearly furnish the presidency with significant legislative power, and they may therefore somewhat blunt the force of the charge that unilateral presidential directives are constitutionally problematic insofar as they violate a strict separation of powers, but the fact that the president has certain legislative powers does not clearly support unilateral presidential directives as an independent form of lawmaking. A potentially more promising constitutional warrant for unilateral presidential directives appears at the very beginning of Article II: ‘‘The executive Power shall be vested in a President of the United States of America.’’ This is known as the vesting clause, and it has long been controversial. It is not Constitutional Executive 31 clear what the vesting clause does. On one view, it simply indicates that the federal government’s chief executive officer is to be called the ‘‘President.’’ In other words, it confers a title. However, on another view, the vesting clause references a source of authority for that officeholder. In other words, it confers power, perhaps including the power to issue unilateral presidential directives. Of course, the power that...