Executive Power

The Supreme Court Should Stay Far Away from the Vesting Clause in Zivitofsky

By Julian Davis Mortenson
Wednesday, October 29, 2014, 11:19 AM

The strange little case of Zivotofsky v. Kerry casts power politics as petty paperwork. But it might be one of the most significant non-terrorism foreign affairs cases in a generation. In the broadest sense, the case is about whether the President can disregard a foreign affairs statute. Framed most narrowly, it’s about whether Menachem Zivotofsky’s passport should read “Israel” or “Jerusalem.” It’s this uncertainty about the eventual decision’s likely breadth that motivates the following comments.

The legal background has been well canvassed by Curt Bradley, Jack Goldsmith, and Robert Reinstein. I won’t rehash it here. This post, instead, makes just one point. Regardless of how the Supreme Court decides Zivotofsky, it should not invoke the Vesting Clause to support its decision.

That clause---the first sentence of Article II of the U.S. Constitution---has the bland ring of a human resources circular: “The executive power shall be vested in a President of the United States of America.” There are a number of competing interpretations of the sentence’s key phrase, “executive power.” But the dominant originalist view appears to be that “executive power” references a well-understood suite of powers that a Founding-era head of state would typically have possessed.

Adherents of this definition understand the phrase “executive power” as a term of art that referred to a specific bundle of substantive powers held by the British King. In the same way that bestowing diplomatic, agency, or trustee powers conveys a specific package of powers and privileges that are useful to a person charged with those functions, it is said that vesting “executive power”---standing alone---conveys a similar bundle of usefully associated authorities. From that starting point, the most dogmatic versions of the theory derive a default rule that the constitutional President possesses the same powers and privileges as the eighteenth-century British King, except where other provisions of the Constitution either limit those powers or assign them to other actors.

Based on my ongoing research, I think the prevailing originalist view is wrong. Not just complicated or debatable, but in fact demonstrably mistaken.

As a matter of trans-Atlantic lawyerly usage, there was indeed a term of art for the basket of non-statutory powers that were held by the British King. But that term was “royal prerogative,” not “executive power.” The Article II phrase “executive power” was a distinct authority held alongside the “royal prerogative”---and a highly specific one at that, referring to the narrow but potent role of “executing” the commands and authorizations of both common and statutory law. If my preliminary research holds up, then the accepted theory gets it exactly backwards:  Article II should be understood to have granted only those substantive powers that were expressly specified outside the Vesting Clause. As for the Vesting Clause, it granted only what it said:  the President’s power to execute duly promulgated laws.

Who says so? William Blackstone. His Commentaries on the Laws of England---famously described by Madison at the Virginia ratifying convention as “a book which is in every man’s hand”---was easily the most important legal treatise in the Founders’ America. And it is simply irreconcilable with the view of Article II “executive power” as a royal residuum.

The key to understanding Blackstone---and the profound challenge he poses to a broad substantive theory of the Vesting Clause---is his careful division of two distinct issues:  first, the conceptual powers of government; and second, the specific historical English political entities between which those powers were divided. Read as a whole and in historical context, the Commentaries are strikingly clear on this point. (The links in this post are to the best online version, which uses the text of his first edition. But the citations and analysis come from the sixth edition, published in 1780.)

For starters, Blackstone’s discussion of “the executive power” cannot be understood without reference to the book-long argumentative context in which it is situated:  a celebration of the rights of Englishmen and a detailed discussion of the structural political mechanisms that protect those rights. Thus, the first chapter of the book---titled “The Absolute Rights of Individuals”---celebrates the particular “liberties of Englishmen,” the protections they enjoy against “every species of compulsive tyranny and oppression,” and the proposition that England “is the only nation in the world where political or civil liberty is the direct end of its constitution.” From that assertion of the central priority of individual rights under the English constitution, Blackstone then turns to explain the structure by which those rights are secured.

The second chapter---titled “On Parliament”---kicks off this explanation first by emphasizing the organizing conceptual principle that motives Blackstone’s discussion of the English constitution’s specific historical structures. He begins the chapter by describing the central problem of constitutional structure in a nation whose constitution is dedicated to liberty:  the separation and distinct allocation of two different categories of governmental authority:  (i) the “legislative . . . authority”---i.e., “the right . . . of making . . . the laws”; and (ii) the “executive authority,” i.e., “the right . . . of enforcing the laws” (emphases in original). This conceptual distinction, he immediately emphasizes, is crucial to the motivating normative concern of his work, for liberty as the central value of English constitutionalism.

Having identified the two central conceptual categories of government power, Blackstone then turns to the prescriptive institutional observation that liberty is best served by allocating these two powers between distinct political entities. It is the central institutional move of the English constitution, he explains, not to leave the “executive authority”---which is to say, “the right of . . . enforcing the laws”---in the same hands as those of the lawmaking power (emphasis in original).

In a nutshell, Blackstone thus begins his commentary by emphasizing the liberty of the individual above all else; follows up by identifying the distinction between two distinct conceptual categories of government power; and then pivots to emphasize the need to allocate those conceptual powers to different political entities.

On that foundation, Blackstone then turns from a conceptual discussion of executive and legislative power in the abstract, to a grounded and particularized discussion of the contingent institutional characteristics of the two entities between which those two powers are in fact divided: Parliament and the Crown. The remainder of the second chapter, “On Parliament,” details the actual mechanics by which the real-world entity possessing “legislative authority”---i.e., the King-in-Parliament---works:  how its constituent members are selected; how it is convened; how it passes laws; what sort of privileges it possesses; etc. The third chapter then turns to the same kind of careful institutional analysis of the real-world entity in which (anticipating the U.S. Constitution’s Vesting Clause) “the supreme executive power . . . is vested”:  “The Person of the King.”

The next two hundred pages go about doing precisely that. Blackstone first describes the process by which “the English nation . . . mark[s] out with precision, who is that single person”---i.e., the rules of “the royal succession.” Then he describes the constitutive rules and legal rights and relations of the individuals and institutions appurtenant to the Crown:  “The King’s Royal Family” and “The Councils Belonging to the King,” from “the high court of parliament” and “the peers of the realm” to “the judges of the courts of law” and the “privy council.” Blackstone next turns to “The King’s Duties,” including in particular “the duty . . . to govern his people according to law,” with close attention to the coronation oath. Only then---in a chapter titled “Of the King’s Prerogative”---does Blackstone finally arrive at the question of most interest for modern purposes:  a discussion of the substantive authorities, powers, and privileges possessed by the political entity called the King.

And here is the crucial moment. For when Blackstone finally arrives at this question---of what kind of authorities and privileges this political creature called the King actually has---he immediately clarifies that the “executive power” (which, again, he earlier defined as “the right of enforcing the laws") sits alongside a suite of other powers that are also held by the King. The legal term Blackstone uses for that latter set of powers as they relate to the royal character, authority, and income is, per the title of the relevant chapter, “The King’s Prerogative.” He is careful to clarify this from the outset: “By the word prerogative, we understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law” in the form of “those rights and capacities which the king enjoys alone.”

The ensuing pages are devoted to a painstakingly detailed description of these powers, privileges, and authorities. In other words, Blackstone inventories a bundle of powers just like the one envisioned as the starting point for analysis under the Vesting Clause Thesis---a bundle that he unequivocally titles “the royal prerogative.”

Blackstone says, for example, that the royal prerogative includes the following:  the sovereign and sacred nature of the royal person; a personal immunity from suit; a personal exemption from the rules of laches and negligence; the “sole power of sending ambassadors to foreign states, and receiving ambassadors at home”; the power “to make treaties, leagues, and alliances with foreign states and princes”; “the sole prerogative of making war and peace”; “the prerogative of granting safe-conducts”; the right to be “a constituent part of the supreme legislative power” with “the prerogative of rejecting such provisions in parliament, as he judges improper”; the role of “the generalissimo, or the first in the military command”; the “sole power of raising and regulating fleets and armies.” Recognize some of those? Me too.

But there’s more. A lot more. The King’s prerogative also includes---as examples from a much longer list---the exclusive right for “the erection of beacons, light-houses, and sea-marks”; “the power . . . of prohibiting the exportation of arms or ammunition out of this kingdom under severe penalties”; “the sole power of conferring dignities and honors”; “the custody of...all the lay revenues, lands, and tenements . . . which belong to an archbishop’s or bishop’s see”; the right to “send one of his chaplains to be maintained by [each] bishop”; the right in certain circumstances to goods washed up on the land from shipwrecks; and the right to silver mines and various other “treasure-trove[s]” that are discovered by chance; and (my favorite) the right to all whale and sturgeon caught near the English shore.

For Blackstone, this is the list of the King’s inherent powers under the English constitution---the English analogy of the powers granted to the U.S. President by Article II of the American Constitution. And it is called the royal prerogative. And it sits alongside the executive power as a distinct set of authorities possessed by the King.

My review of other legal, theoretical, political and polemical sources extant at the Founding suggests broad support for Blackstone’s conceptual structure and careful lawyerly usages. The sole exception of which I am aware appears to be Montesquieu, a French philosopher whose brief treatment of the subject is internally contradictory and offers not just two but arguably three or four conflicting definitions of executive power in his discussion of the English Constitution. But bracket both points, which are well beyond the scope of this post.

My only point here is to urge any Justice who considers the Vesting Clause argument to take a couple of hours and read Blackstone---or at least assign the first nine chapters of Book I of the Commentaries to a clerk. I suspect anyone who does so will come away extremely worried about the accuracy of the prevailing understanding of “executive power” as a reconstruction of the original understanding of Article II.