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The Article II Executive Power and the Rule of Law (Part I)

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22.07.2019

The editors have graciously invited me to write a series of guest posts about executive power. The more elaborate version of what I have to say is in a working draft that's been posted to SSRN, titled Executive Power.

Officials who administer the government and carry out the law do so in an environment of legal rules that empower and constrain them. My central claim is that the Article II executive power consists exclusively of the capacity to perform the roles constituted by those rules, none of which comes from the executive power itself.

Executive power brings with it no authority to use government resources or to invade otherwise-protected private interests. It brings with it no inviolable discretion in the administration of the government in its foreign or domestic or military operations. All the rules that empower executive officials and give them discretion have sources other than the executive power itself. The only inherent executive power is the capacity to play the role constituted by those other rules. The President's role as Commander in Chief of the armed forces concerns the military hierarchy, not the substance of the law that applies to the armed forces.

This first post sets out that limited conception of the executive power. It then begins the argument that the Article II executive power refers to that conception by identifying that understanding—the Whig executive—as a leading candidate for the meaning of "executive power" at the time of the framing. The next post will pick up the argument concerning the Constitution's text and structure. The third will discuss the available records of the Federal Convention, arguing that the Whig conception was known to the delegates and that their drafting choices indicate that they meant to employ it.

The fourth post will........

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