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

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26.07.2019

The preceding post explained how executive discretion can arise even though executive power itself does not confer any. Familiar forms of supposedly inherent executive power thus can have sources other than the executive power itself.

This concluding post begins by examining two other forms of often-asserted presidential authority that are frequently ascribed to the executive power: executive privilege against demands for information, and presidential authority to direct the executive branch (the principle of the unitary executive). I will question the first and endorse the second, while arguing that the executive power is not the place to look for either one. The post will then briefly discuss two noteworthy appearances of the Whig conception of executive power in the long debate over Article II.

Presidents sometimes claim a privilege not to comply with otherwise-valid demands for information from Congress or the courts. Whether the Constitution itself secures any such privilege for the President or other executive officials is in my view doubtful. I think it more likely that rules of privilege are a proper subject for Congress' power to carry other constitutional powers into execution (the horizontal necessary and proper power). If the Constitution creates such privileges, however, they are not part of the executive power itself. Rather, they arise from an implicit principle that weighty decisions can........

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