The Old Whig Theory of the Executive Power

The Old Whig position is that the express powers (including the veto) vested in the presidency by Article II are not part of the “Executive Power” (except in the limited sense that they are powers appended to the presidency for him to execute). Today, we think of those powers as executive merely because we are used to the President doing them.

Those express powers are merely appendages to the presidency—in much the way that the Chief Justice presides over presidential impeachments (outside the context of the Judicial Power vested in the federal courts by Article III) and in much the same way that the Vice President presides over the Senate and has a vote on equal division (although the VP is not a constituent part (or member) of Congress or the Senate (as defined by Article I).

The Executive Power of Article II is wholly an excrescence of Congress’ twin (procedural) powers under Article I, Section 7, Clause 2 (to make statutes) and Article I, Section 7, Clause 3 (to make subsidiary legislation or statutory instruments: orders, resolutions, and votes). That is why Article II does not have to mimic Article I’s language about “herein granted”. In other words, because Congress’ powers are already limited to the subject matters “herein granted” and because all Executive Power flows from grants from Congress under 1/7/2 and 1/7/3, then the Executive Power is also limited to the same subject matters, viz., where Congress has the power to enact binding law (widely construed). Putting “herein granted” language in Article II would be wholly redundant. Congress can only gift or grant what it has and holds, and the President can only receive or take (as Executive Power) what Congress has the power to grant.

The Old Whig theory stands in opposition to the Hamiltonian theory of a core or residium of undefined executive power which exists absent an express grant of Article I, Section 7 authority from Congress. The Old Whig position is a unitary-executive-type position, like Hamilton’s, but it permits the executive to be a weak one, albeit one which cannot be stripped of the powers expressly granted by Article II.

I suspect that this is what Chief Justice Taney had in mind ... when he wrote:

The only power, therefore, which the president possesses, where the “life, liberty or property” of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires “that he shall take care that the laws shall be faithfully executed.” He is not authorized to execute them himself, or [even] through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.

Ex parte Merryman, 17 F. Cas. 144, 149 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (emphasis added).

I know most, including many well informed scholars, will not agree with this post. I can already hear the “chorus of execration”** ....

For a different take on executive power, see Oran Doyle, The Constitution of Ireland: A Contextual Analysis 102 (Hart Publishing 2018) (“[E]xecutive power consists either of textually explicit power, such as the Government’s power in relation to foreign affairs, or of implicit State powers that necessarily inhere in Ireland and which fall to be exercised by the Government, such as immigration control power.”). 

See generally Charles L. Black, Jr., Correspondence: On Article I Section 7, Clause 3—and the Amendment of the Constitution, 87 Yale L.J. 896 (1978), <http://tinyurl.com/y4c6zwfa>; Charles L. Black, Jr., Some Thoughts on the Veto, 40(2) Law & Contemp. Probs. 87 (Spring 1976), <http://tinyurl.com/yygvtbho>; Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972), <https://digitalcommons.law.yale.edu/fss_papers/2597/>; Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Texas L. Rev. 1265 (2005), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=475204>; Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005), <http://ssrn.com/abstract=556789>; Seth Barrett Tillman, The Domain of Constitutional Delegations Under the Orders, Resolutions, and Votes Clause: A Reply to Professor Gary Lawson, 83 Tex. L. Rev. 1389 (2005), <http://ssrn.com/abstract=658003>. 

Seth

Seth Barrett Tillman, The Old Whig Theory of the Executive Power, New Reform Club (Jan. 18, 2019, 5:02 AM), <https://reformclub.blogspot.com/2019/01/the-old-whig-theory-of-executive-power.html>. 

**Arthur Conan Doyle, The Great Boer War 118 (1902), <https://tinyurl.com/ydxl6mv4>; see also Arthur Conan Doyle, The Complete Works of Arthur Conan Doyle/illustrated ch. 8 (2017), <https://tinyurl.com/yb4ndx77>; cf. Address to the Annual General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, Midland Hotel April 20, 1968), <https://tinyurl.com/yaqzg2cf>. 

Welcome Instapundit Readers!