Sept. 17 marked the 230th anniversary of the signing of the U.S. Constitution, and the beginning of a four-part series on the separation of powers and the first three articles of our founding document. To begin, Hans A. von Spakovsky examined why the separation of powers was important to the Founders and the challenges the concept faces today. Next, Christopher DeMuth explored Article I and the legislative branch. Next up are law professor John Yoo and Saikrishna Prakash on Article II, the executive branch. Former Circuit Judge Michael McConnell will finish the series, writing on Article III, the judiciary.
When the Framers gathered at Independence Hall in 1787, they confronted the task of reforming the executive branch. By the end of that typically hot, humid Philadelphia summer, they had established a unified, independent president with the power to confront the crises and challenges that would beset a great nation.
Under the Articles of Confederation (our Constitution version 1.0), the Continental Congress wielded executive power as a plural executive. Anyone who has ever served on a committee could predict the results: disagreement, infighting, passivity, and paralysis. Many of Congress’ failures after securing independence in 1783 — the inability to honor treaties, the failure to keep the British, French, and Spanish out of our territories, feeble federal law enforcement, a rebellion — were attributable to its weaknesses as an executive.
Convention delegates like Alexander Hamilton, James Madison, and George Washington joined Pennsylvanians Gouverneur Morris and James Wilson in seeking to invigorate the government. First, they made the president a single official. They rejected a Roman triumvirate and an advisory council that could veto decisions. They spurned legislative election (the system used by parliamentary democracies in much of the Western world today) and created the Electoral College so the president would not feel beholden to Congress.
Concentrating executive power in a single, independent president would bring “[d]ecision, activity, secrecy, and dispatch,” Hamilton explained in The Federalist. Diffusing power among multiple individuals would only weaken the executive, foster confusion, and frustrate the government’s ability to respond to “the most critical emergencies of the state.”
The Framers turned aside the fear of executive power that had motivated the revolutionaries. Rebelling against the excesses of King George III and Parliament in 1776, the states initially established weak governors in their new constitutions: Pennsylvania, for example, had an executive council made up of 12 men elected by the assembly for unrenewable one-year terms. Instability and poorly administered governments ensued, such that historians today refer to this time as “the Critical Period.”
By 1787 the Framers had learned the errors of these ways. “A feeble execution is but another phrase for a bad execution,” Hamilton observed in The Federalist, “and a government ill executed, whatever may be in theory, must be, in practice, a bad government.” “Good government” required “energy in the executive.” A vigorous president was “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.”
The second pillar of the Framers’ reforms was “competent powers.” Chief among the president’s enumerated powers is law enforcement. “The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate,” Hamilton observed. Article II’s general grant of the executive power and its requirement that the president “take Care that the Laws be faithfully executed” both restrict and empower the executive. They make clear that the president cannot suspend the law of the land at his whim, as British kings had, but they also give the president authority both to enforce the law and to interpret it. Enforcing the law gives the president the right to compel the obedience of private individuals, and even states, to federal law. At critical times in American history — the Republic’s early years, the Civil War, and the civil rights revolution — presidents have even called out the military to fulfill this constitutional duty.
Foreign affairs is the other major field of presidential power. When the Framers ratified the Constitution, they understood that Article II’s grant of “the executive power” continued the Anglo-American tradition of locating the foreign affairs power generally in the executive branch. The Federalists did not look to the executive to manage war and peace just for tradition’s sake. They understood the executive to be functionally best matched in speed, unity, and decisiveness to the unpredictable high stakes of foreign affairs. The executive’s control of foreign affairs, however, was hardly absolute. Making treaties and sending ambassadors would require senatorial consent. Moreover, though the president would control the soldiers and diplomats, only Congress could raise and fund the military and the State Department, control international commerce, and enact domestic legislation.
Some critics of the modern presidency imagine the Constitution was created in an era that rejected all things monarchical. But they fail to recognize that the Framers who wrote the Constitution saw the wisdom of a powerful and independent executive. The chief executive that emerged from the Philadelphia convention was stronger than any extant state executives and even some crowned monarchs.
Of course, many Americans don’t like strong executives. Whenever presidents are thought to overreach, they are accused of being another “King George.” Virtually any president of consequence has been accused of being a Caesar or a despot. Even Washington, the father of our country, faced these claims. So did “King Andrew the First” (Andrew Jackson) and the “tyrant and a dictator” (Abraham Lincoln). President George W. Bush was derided as King George and President Barack Obama got a promotion to “King Obama.”
President Trump now suffers from the same comparisons. His presidency is still in the early innings. We cannot say how it will unfold. But he is not the first president to be denounced as an autocrat, and he will not be the last. Above all, we should not permit disagreement with the individuals who have occupied the office to obscure the Framers’ signal achievement. They bequeathed to us an executive independent but accountable, vigorous but limited, capable of responding to extraordinary crises yet within the stable framework of our government.
John Yoo is a law professor at UC Berkeley, visiting scholar at the American Enterprise Institute, and a participant of the Federalist Society’s nonpartisan Article I Initiative. His new book is “Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War.” firstname.lastname@example.org
Saikrishna Prakash is the James Madison distinguished professor and Miller Center senior fellow at the University of Virginia and is the author of “Imperial from the Beginning: The Constitution of the Original Executive.” email@example.com