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How Powerful Is the Executive Branch?

Professor Saikrishna Prakash discusses what power is vested in the President. Unlike the enumerated powers granted to Congress, the Constitution provides a broad grant of all executive power to the President. These powers include not only enforcing the law, but also power over executive officers and foreign affairs. The Founders wanted the Executive to be a formidable authority to counterbalance Congress. https://youtube.com/watch?v=lJVDidH4Nuw


The Presidency was meant to be strong, it was not meant to be weak, or more precisely the Founders created a President that was going to be strong. They wanted to create a counterbalance to Congress, and to do that, they had to give him sufficient weapons and armor to defend against Congress. It's a powerful office, and of course the question, is how powerful? Article 2, Section 1 says the executive power shall be vested in the President of the United States. The executive power, as I understand it at the Founding, is a grant of authority to execute the law. That is the essence of executive power, but it also includes other things that were related to law execution. The original Presidency had authority over law execution, foreign affairs, a limited interstitial authority over foreign affairs, and authority over executive officers. Let me unpack that. Law execution would just be implementing Congress's statutes, Congress's appropriation statutes, Congress's Army statutes, Congress's bankruptcy and naturalization statutes. The foreign affairs authority was interstitial. The President can't declare war, but the President can do a whole host of things in foreign affairs that aren't specifically enumerated, because of the Vesting clause. He can tell American diplomats what to say to foreign countries. He can fire American foreign diplomats, even though there's nothing in the Constitution about that. Then finally, we see the same sorts of things with respect to executive officers. We see the President ordering US executive officers to do all sorts of things - to prosecute individuals, to spend money pursuant to Congressional appropriations, to convey messages to foreign governments. You don't see any of that in Article 2, Section, 1 but it's common to grant a particular power, and to understand that the readers will read that general grant in light of the shared experience about executive authority. Article 1 says that the legislative powers herein granted are given to Congress. Articles 2 and 3 don't have that limitation. It's a mistake to think that Presidents powers are limited to the stuff found in Article 2, Section 2, the material found in Article 2, Section 2. That's never been our practice. It doesn't comport with what the Founding Fathers said about executive power. It doesn't comport with what Washington, Hamilton, Jefferson, Madison, Wilson said about the Executive Power Clause. We have had a 200-year plus tradition of treating the Vesting Clause as a source of authority. The Supreme Court itself has said as much.

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