“Professor McConnell’s extensive study of the substance and scope of presidential power under the Constitution has convinced me that the unifying capacity of the Constitution could perhaps be revived.”
isagreement and deep-seated difference are not alien realities to American political life. From the founding onwards, the United States of America has been replete with divisions running along fraught lines of race, region, religion, ethics, culture, and worldview. In the face of those differences, certain laws, ideas, understandings of our shared past, and even myths have helped to hold us together. Sometimes our bonds of unity have proven insufficient, and a particularly entrenched divide overpowers the normal constraints of public debate and morphs into violence, as was the case with the North-South dispute over slavery and the nature of the Union that culminated in the Civil War.
At any given point in our history, there have been various tools at our disposal to forge shared national unity. The tools vary in how morally upright, as well as how efficacious, they are. One especially powerful tool that helped to forge a sense of nationhood in the minds of Americans during the early years of the republic was the Constitution that the framers drafted in Philadelphia in the summer of 1787. It is important to remember that the fundamental fact of American political reality in the lead-up to the Constitution’s drafting was state-based, geographic division. Americans had a thin sense of their common nationhood, and their political attachments were almost entirely centered on their respective states. Americans’ overwhelming loyalty to their own states and lack thereof vis-à-vis the new nation had hampered the effectiveness of the national government under the Articles of Confederation and led founders such as George Washington and James Madison privately to worry about a national crackup prior to the Philadelphia Convention.
The Convention over which Washington presided and in which Madison was the principal intellectual force produced a national governance document, a “stunningly nationalist” Constitution, which brought the loosely-knit nation of states together into a veritable union. As the late Princeton historian John Murrin wrote:
“American national identity was…an unexpected, impromptu, artificial, and therefore extremely fragile creation of the Revolution…[T]he Constitution became a substitute for any deeper kind of national identity. American nationalism is distinct because, for nearly its first century, it was narrowly and peculiarly constitutional. People knew that without the Constitution there would be no America.”
The Constitution bought time for more organic, stronger bonds of American nationhood to really form. Those bonds would not be fully solidified until the fundamental divide over chattel slavery was finally resolved and the blood of the Civil War had been shed.
The Constitution as Unifier and The Case of Executive Power Originally Understood
Thus, particularly in the early years of the republic, the Constitution served the essential function of bringing Americans together, of creating a sense of nationhood.
Can it do so again? Can the Constitution once more become an effective means of forging a sense of unity in a nation rife with disagreement and difference?
Prior to reading Stanford Law Professor Michael W. McConnell’s latest book, The President Who Would Not Be King: Executive Power under the Constitution, I thought the answer to this question regarding the potential unifying power of the Constitution today might be a straightforward “no.” After all, a significant swath of one of our two major political parties, and the President of the United States himself, have been trampling over democratic and constitutional norms in the wake of the November election. Moreover, the Constitution itself has grown overly politicized. In recent decades, the de facto final arbiters of the Constitution’s meaning—judges—have thrust themselves into some of our nation’s most heated political debates, throwing the weight of the Constitution into culture war bouts in which it has no place being. This has degraded the Constitution and corrupted its unifying power. And the irresponsible rhetoric of many of our politicians has only made the problem worse. Just as the leading lights of contemporary American politics have diluted the meaning of democracy, they have ripped the Constitution from its (rightly) esteemed position as our nation-creating and politics-constraining document and pushed it down to the level of partisan hackery.
Yet there is hope.
Professor McConnell’s extensive study of the substance and scope of presidential power under the Constitution has convinced me that the unifying capacity of the Constitution could perhaps be revived. Using originalist methods of scholarship—that is, by analyzing the British constitutional practices and precedents upon which the framers drew heavily when designing the federal executive, the records of the Philadelphia Convention debates, the private correspondence and public pamphleteering of the framers at the time of the Constitution’s drafting and ratification, and the constitutionally relevant political practices and decisions of the framers in the post-ratification early republic—McConnell unearths an impressively powerful, substantive, yet constrained office of the presidency.
There are gray areas, of course, which is where politics happens. But not everything is up for grabs.
McConnell writes that “America needs a consistent understanding of presidential power no matter which party controls the presidency.” He has provided readers with such an understanding. He reminds us that Article II, and our Constitution more broadly, is not merely a conglomeration of procedural requirements and vaguely defined powers. No. There are gray areas, of course, which is where politics happens. But not everything is up for grabs.
The gift of the framers, passed down through generations to us, is a Constitution that sets both the ground floor and the ceiling of our politics. There are certain requirements and duties that must be met and carried out (the floor), and there are certain limits on the power of different political actors and institutions (the ceiling). Perhaps when we recognize that the Constitution is a gift of real substance—not a mere empty box into which we can toss whatever may suit us, our partisan objectives, or our present political moment—we will have an easier time understanding that we are bound together with our fellow American citizens, present and past. We might have a better chance at grasping the fact that even here in 2021, the Constitution still constitutes a nation grounded in particular political principles—a nation of which we all are blessed to call ourselves citizens.
Unearthing the Framers’ Presidency with the Help of British Precedent
The genius of McConnell’s study is that he rejects simplistic, extreme positions on the substance and scope of executive power in favor of an exceptionally nuanced exegesis of Article II powers. McConnell writes that the key challenge confronting the framers at the Convention was to craft an executive that was powerful enough to be effective but weak enough to not grow despotic: “How could the delegates achieve the independence, vigor, secrecy, and dispatch necessary for an effective executive without rendering him an elected monarch?” Moreover, as the framers also feared Congressional tyranny in light of their post-Revolutionary experience with state legislatures, the executive would also have to be sufficiently “independent” of Congress so that “he could check the excess of that body.”
To craft an executive that effectively toed the line, the framers drew heavily from British constitutional history, accepting some kingly precedents and repudiating others. McConnell’s core insight for a lay reader like myself is that the key crafters of Article II—namely, the members of the ever “audacious” Committee of Detail like James Wilson and John Rutledge—“went down the list of [British] royal prerogative powers and allocated every single one (with one exception) either to the President, to the President with advice and consent, or to Congress—with a few, like the power to create titles of nobility, denied to the federal government altogether.” Prerogative powers were those powers that were not strictly legislative, executive, or judicial in nature—powers like making war; raising, supporting, and commanding an army and navy; coining money; and making rules for naturalization, among others. McConnell writes that “By assigning royal prerogatives to the legislative branch and restricting the scope of most of those assigned to the executive [largely via the mechanism of Senatorial advice and consent], the Committee of Detail averted, or at least reduced, the risk that the ‘single person’ exercising the powers of the executive branch would be tantamount to a king.” Still, the framers equipped the President with far more than the strictly executive power to execute the laws passed by Congress, including in the domestic realm: “the combination of the power to propose a legislative agenda and to veto legislation gives the President an outsized role in national legislative affairs. Instead of a king armed with the bulk of the sovereign power but checked by a legislature, the Constitution established an executive with few prerogative powers but unprecedented political heft.”
Thus, building off of his thesis regarding the framers’ careful parceling out of the prerogative powers, McConnell paints a portrait of a powerful yet constrained federal executive. He continues apace as he persuasively argues that the Vesting Clause of Article II grants the President with substantive power; “there is overwhelming evidence that the term was not limited to carrying out the will of the legislature.” That said, fears that this independent grant of executive power has the makings of despotism are overblown. The residual powers stemming from the Vesting Clause are subservient to Congress’s lawful exercise of its Article I Section 8 enumerated powers. Moreover, writes McConnell, the President’s Vesting Clause residual powers “pertain primarily to foreign relations and matters of internal administration, and do not touch the rights of individuals. So understood, they should not be regarded as dangerous to constitutional values.” Similarly, executive discretion is limited by the specific language of the Take Care Clause: “By framing the clause as a duty, the drafters made clear that the President does not have the disputed prerogative powers of dispensing with or suspending the laws.”
McConnell’s Theory of Executive Power in Practice: The Example of Nondelegation
McConnell’s expert treatment of the Vesting Clause, Take Care Clause, and Article II’s nuanced relationship with the British monarch’s prerogative powers lays the groundwork for his separation of presidential powers into three categories: (1) Prerogative powers which the President has a constitutional right to exercise and which cannot be abridged by Congressional action. Such powers include the Commander-in-chief power and the authority to make treaties with foreign nations. The exercise of some of these prerogative powers, like the treaty-making power, are subject to senatorial advice and consent. (2) Powers lawfully delegated to the President by Congress. (3) Vesting Clause residual powers—i.e., “[d]efeasible residual powers that the President may exercise without statutory authorization, but are subject to regulation or even displacement by statutes passed pursuant to the enumerated powers of Congress.”
McConnell has provided us with an exceptionally intelligible means of figuring out which exercises of presidential authority are valid and which are not. McConnell’s nemesis here is the “elegant, but ultimately unhelpful and misleading” test of the constitutionality of presidential action put forth by Justice Robert Jackson’s famous concurrence in the Steel Seizure Case. McConnell’s core insight is that there are different sorts of presidential power, the differences of which are grounded in substance and not in what Congress says or does not say.
McConnell illustrates his point with a variety of case studies, including a chapter on nondelegation—the extent to which Congress, the body in which “All legislative Powers” granted by the Constitution to the federal government are vested, is barred from transferring its Article I Section 8 powers to the President. McConnell’s learned approach to executive power provides a much clearer answer than the existing, slipshod delegation-related jurisprudence. McConnell notes that strictly legislative authority—“the power to make rules binding on persons or property within the nation”—is vested in Congress alone and cannot be delegated away to the President. However, remember that Congress was granted more than just legislative powers; the framers also granted a number of formerly kingly prerogative powers like the power to coin money and establish a post office to Congress. These powers can be delegated back to the President and exercised by him without running afoul of the Constitution.
McConnell points out that this approach to the question of constitutionally permissible delegation—an approach that asks what sort of power is being delegated rather than how much power is being delegated—would not radically eviscerate the existing administrative state. However, it would temper pushes to place the authority to regulate individuals’ lives and property, the power to make law, in the hands of someone other than the people’s elected representatives.
Rediscovering the Founders’ President—and Constitution
McConnell closes by writing that “Maybe a renewed attention to the original design [of the powers of the Presidency] will point a way forward that will work for presidents of a variety of temperaments and commitments.” Indeed it does. The President Who Would Not Be King reminds us that though there are myriad areas for good-faith debate and disagreement over the meaning of our Constitution, the document is not vacuous. We have scholarly tools at our disposal to work through much of its meaning. And that meaning is not necessarily slanted in one partisan direction or another. Both mainstream liberal and conservative approaches to American politics and the presidency are constrained but not negated by our constitutional substance. That substance protects our rights and liberties, and if we study it in good faith and grant it the praise and appreciation which it is due, perhaps it can once more help bind us together as Americans.
Thomas Koenig is a recent graduate of Princeton University and will be attending Harvard Law School in the fall of 2021. He can be found on Twitter @TomsTakes98