How the Framers Made the Presidency

Richard Reinsch (00:18):

I’m glad to welcome to the program today Michael McConnell to discuss his new book just out from Princeton University Press, The President Who Would Not Be King: Executive Power Under the Constitution. Michael McConnell is one of our most profound constitutional thinkers. He’s the Richard and Frances Mallery Professor of Law, and the Director of the Constitutional Law Center at Stanford University Law School. He’s also a Senior Fellow at the Hoover Institution. He was formerly on the 10th Circuit Court of Appeals from 2002 to 2009. He has appeared before the Supreme Court 15 times. He also has another book coming out very soon from Cambridge Press, Establishment of Religion: Neutrality, Accommodation, and Separation. Michael McConnell, we’re glad to have you on the program today.

Michael McConnell (01:12):

It’s a real pleasure. Thanks for having me.

Richard Reinsch (01:14):

Michael, I thought I’d start maybe with a more popular question, and it’s a question on a lot of people’s minds. I think it’s a bipartisan question, depending on who’s in the White House. The view out there is, in large measure, presidential power in the United States is increasingly exercised not under the Constitution, but on top of the Constitution or in an extra-legal fashion. Do you think that is the case in the course of your studies? So has the Presidency in America increasingly become extra-constitutional or unconstitutional? Or do you find it to be a much more nuanced approach?

Michael McConnell (01:54):

I think the answer to that is sort of or almost.

Richard Reinsch (01:59):

Almost under the Constitution?

Michael McConnell (02:00):

Yeah.

Richard Reinsch (02:00):

Okay.

Michael McConnell (02:01):

That it’s become extra-constitutional, but a lot of that is because Congress has invited it. So it’s very difficult to say that many of these things are unconstitutional when Congress has passed vast delegations of power to the executive branch in sloppy language, and then, of course, the presidents have run with it. Take just a current example, which is folks urging President Biden to cancel student debt. Well, what has Congress done here? Congress has given the executive power to negotiate and compromise individual claims. Now, this is just like any other debtor thing. If you’re dealing with Best Buy or whomever, and you owe them money and you’re not going to be able to pay, they’ll negotiate that down. That’s what that’s exactly for. But Biden’s advisors are telling him, “Well, you can just compromise them all, and you can compromise them down to zero. You can thereby eliminate all of the student debt that is owed to the United States.” Now, I think that is just an outrageous misunderstanding of the statute. Right? But the problem with it is that the state itself is ambiguous. So when Biden’s advisors say … Biden himself is resisting this, according to the newspapers. But what his advisors are saying is, “Take advantage of every little ambiguity to do this.” It’s very similar to what Donald Trump did with the building the wall on the border with Mexico when Congress refused to appropriate money for it. Instead, he takes a highly dubious interpretation of the Emergency Powers Act and just runs with it.

Richard Reinsch (03:52):

And there’s also this issue of how do you fund things. With the wall and the Trump administration, there was debate over was it constitutional, was it lawful for him to move money around? I guess the view of the administration was, “Statutorily, we have that authority.”

Michael McConnell (04:05):

Yes. But again, the typical problem today is not that the executive branch does things that are absolutely out of its wheelhouse, but rather that they stretch ambiguous statutory authority and use it in ways that Congress never intended.

This is, I think, the first comprehensive account of how the presidency was put together by the delegates of the Philadelphia Convention in 1787. I think the last real attempt to do this was in the 1920s. I think it’s a fascinating story. It’s a story that isn’t often told. It’s a story that makes current politics look not so good, either Republican or Democratic.

Richard Reinsch (04:24):

And then Congress seems unwilling or unlikely or too partisan, depending on who’s in the White House, to stand up for its own institutional power.

Michael McConnell (04:34):

Yeah, Congress is basically no longer interested in institutional questions. They are only interested in partisan questions. And given that the Congress is pretty divided, Senate’s 50/50, democrats are just barely in control of that. The democrats in Congress are not going to rein President Biden in, just as the republicans when they controlled both houses of Congress under Trump were unwilling to rein Trump in. There was a time not that long ago when Congress cared about its institutional prerogatives, and they would join together on a bipartisan basis to object when presidents did things that they believed cut into a congressional authority. And there is no authority that is intended by our Constitution to be so exclusively congressional as the power over the purse. There are actually two provisions of the Constitution that protects Congress’s exclusive power here. We’ve now had three presidents in a row that rather blatantly have been spending large sums of money on pet projects that Congress disapproved of, and have gotten away with it. Actually, Obama didn’t quite get away with it, because the court stepped in when he spent $7 billion on healthcare subsidies to insurance companies that Congress had refused to appropriate. The court actually stepped in and said that that was illegal.

Richard Reinsch (06:08):

That was interesting, too. Because Congress, if I remember correctly, deferred to the court in that case, and they wanted to bring in the court rather than press their own power.

Michael McConnell (06:16):

That’s right. In a way, it’s a confession of weakness when they have to go to court.

Richard Reinsch (06:20):

Yeah.

Michael McConnell (06:21):

But most of the book, as you know, is not about current events. I use the events to illustrate some of the principles, but most of the book actually takes place back in the end of the 18th century.

Richard Reinsch (06:35):

Turning to the book and helping us to shed light on a lot of these controversies, talk about what you’re doing in The President Who Would Not Be King and what your research revealed to you.

Michael McConnell (06:45):

This is, I think, the first comprehensive account of how the presidency was put together by the delegates of the Philadelphia Convention in 1787. I think the last real attempt to do this was in the 1920s. I think it’s a fascinating story. It’s a story that isn’t often told. It’s a story that makes current politics look not so good, either Republican or Democratic. So the very first part of the book is how it happened at the convention, but then with reference to each of the powers that they debate and allocate had a history. So we look back at the history, mostly in British constitutional practice, but it’s sometimes in a colonial or early state practice, or under the Articles of Confederation before the Constitution, and then looking forward, ahead to the first controversies over many of these powers, mostly during the Washington administration, but occasionally up through Adams and Jefferson. The idea here is that the convention was very careful about allocating powers that are of an executive nature. Now, when I say of an executive nature, their sort of rule of thumb for this is they looked at the powers of the king. And they understood those to be, most of them, prerogative powers, which means powers that are actually vested in the king as king, as opposed to through parliamentary delegation. William Blackstone in his commentaries on the laws of England, the book known to our framers intimately, he lists, depending on how you count, perhaps 41 different important powers of the king. Our framers allocated all but one of those either explicitly or implicitly, giving many of them to Congress, giving some of them to the president, which in most cases they actually trim the scope of the power when they’re giving to the president, and then in some cases denying that power to the Federal Government all together. A conspicuous example of that being the kings power over the Church of England. Well, we don’t have an established church in America. So they allocated these powers very carefully. Their basic strategy was to give many of them to Congress, and then to carefully limit the scope of the powers that they give to the president.

Richard Reinsch (09:32):

As the framers go into the Philadelphia Convention, substantively, what’s on their minds regarding executive power? What’s going to guide them in thinking about this allocational division of power?

Michael McConnell (09:44):

Actually, we can tell in what I think is the most dramatic moment at the convention, which is the very third day of substantive debate. The Virginia Plan was sort of their first draft of a constitution prepared by the Virginia delegation, mostly written we think by James Madison. It had an executive power section in which all of the executive powers that had been vested in the Congress under the Articles of Confederation will now be moved to the chief magistrate. They hadn’t yet decided that the name would be president, though I’ll call it president because it really doesn’t matter. But those powers were extensive, so they included, among other things, the power to take the nation into war, and then to get it out of war. These are called the powers of war and peace. And under the British system, the king could do this unilaterally. He did not have to go to Parliament. So they see this, and the very first person to comment is a 20-something from South Carolina named Charles Pinckney. You can almost hear him gasp in the records. I mean, it’s not. He says, “Why? This will make the president a king because the powers are so extensive.” And then they scramble. And in those first few days, they create an executive power which is extraordinarily weak. They basically strip the office of all powers except the power to carry into a effect laws passed by Congress, plus some powers of appointment, plus the power to veto a legislation. That would be a mere shadow.

That would be basically parliamentary government with a little executive branch attached largely for law enforcement purposes, and then they don’t touch that again until late July. The convention begins in May and ends in September. Late July, there’s this committee rather amusingly named the Committee of Detail. I say it’s amusing because this committee did not confine itself to detail. They rewrote major portions of the Constitution. The truth is that more important constitutional decisions about the structure of government were made behind the closed doors of the Committee of Detail than were made on the floor of the Constitutional Convention. And that committee, which was made up of five people, completely rewrote the executive branch. We don’t have any records of what they said, but we have several drafts of their internal drafts as they worked through it. I think it is pretty clear. I mean, this was an inference on my part, but I’m quite convinced that what they were doing was they were using a mental list of executive powers, royal powers from Blackstone, and then parceling them out. For example, 13 of the 29 explicit powers of Congress had actually been royal powers in Blackstone under the British system. So important powers like powers of war and peace. Remember, that’s what set off Charles Pinckney on the first day. The power to make war is given exclusively to Congress, and then they divide the power to make peace, giving the president the power to negotiate the treaty, but the Senate, by two-thirds vote, the power to decide whether to put it into effect. So actually what’s left is a very powerful presidency compared to the shadow that they had created in response to the original idea. A very powerful presidency, but seriously limited compared to the king.

I think that a lot of times the way originalists talk as if on every constitutional question, all we need to do is find out, what was the original public meaning at the time. And there’s an assumption that there was one and that we can find it out. But in history, you can’t wring any more out of history than is there, right? I think we originalists need to be modest about identifying, what do we know and what do we not know?

Richard Reinsch (13:36):

You make a point that the Committee on Detail also, with regard to congressional power, moved from what seemed to be a general grant of power to Congress in the convention to a more detailed, to what we now called the enumerated powers of Congress. I thought that was interesting. The thing about this allocation of power, you also make the point we frequently think about that in terms of federalism, powers not held by Congress or powers held by states. You make the point, and you’ve been talking about this, this is also about what’s between Congress and the president, and things are taken from the presidency. So in a way, the baseline of power is executive power, and that’s what’s they’re carving and giving out to Congress. But there’s this assumption of executive power that’s there, that’s in reserve maybe, and it’s just being whittled down. So in that regard, what do they think should be left?

Michael McConnell (14:32):

The decision to enumerate the powers of Congress is a really interesting one, because the chair of Committee of Detail actually made a motion to enumerate. The day before the committee was set up, he makes this motion. It’s voted down in favor of simply a very broad description of power given to Congress, and basically to be able to enact laws that are genuinely national in character as to which individual states are incompetent. That would essentially give Congress very nearly a total legislative authority. And that’s what the delegates voted for, but John Rutledge had the made. His motion lost. He then becomes chair of the Committee of Detail. And what does he do, along with the other four members? They disregard the vote, and they enumerate the powers of Congress. It’s a lot of what they spent their time doing, and that accomplishes two things. Everyone has always understood that that’s where federalism come from, because the national government is given certain powers and everything else is left to the states. That’s the substance of our federalism system. But in addition to that, and I think this has not been appreciated very much in the past. The other thing that it was by giving a number of royal executive powers to Congress, this is the way that the committee dealt with the boundary line between the authority of the executive branch and the authority of the legislative branch. It’s primarily, not exclusively, but primarily done in Article I by defining what powers Congress has rather than an Article II, which is a kind of slightly disorganized description of presidential power.

Richard Reinsch (16:24):

In the book you proceed, I think, in your research and your writing as an originalist. You talk about original public meaning and original intention, originalism. What did you take though from your study here? The Committee on Detail does so much work seemingly, I won’t say under the table, but on their own without a lot of public or historical discussion. You talked about the drafts we have of their work. You also mentioned the state ratifying conventions don’t really seem to take up executive power the most, which was interesting to me. I’m recalling James Madison’s statement, that a crucial way to understand the terms of the Constitution is by looking to the state ratifying conventions. So do you find these to be holes in the record for originalist research and writing, or do you think the silences and the inferences you can draw are compelling here?

Michael McConnell (17:15):

That’s a great question. I think that a lot of times the way originalists talk, let’s say, at Supreme Court confirmation hearings and that sort of thing. They talk as if on every constitutional question, all we need to do is find out, what was the original public meaning at the time. And there’s an assumption that there was one and that we can find it out. But in history, you can’t wring any more out of history than is there, right? I think we originalists need to be modest about identifying, what do we know and what do we not know? I think that the obligation of a 21st century interpreter is to stick within the lines of what we do know about the original public meaning, right? But we shouldn’t expect to find all the answers to everything. What we’ll find is some kind of boundary, some sort of approach that often times we have to fill in the detail. It’s my personal view, and here I’m maybe not as strict an originalist as some people, I think what we do is we look not just … First of all, we do identify what is the range of possible meaning, and stick with that. But then we look at the course of historical development over time, and the 230-some-odd years since the adoption of the Constitution. That precedent, not just in court but also in the political branches, that precedent is also a major guide. What I think courts should not do is just make it up. What they need to do is they need to comply with the constraints. And then in the end, if the statute where they’re evaluating the constitutionality is not contrary to the text, not contrary to what we know about original meaning, not contrary to long-standing practice or precedent, what they should just say is, “That means it’s constitutional.” The judges may not like it. They might not vote for it. They may disapprove of it. But if it doesn’t contradict any of those sources of constitutional law, they should leave it in place and let the representatives of the people make their mistakes.

Richard Reinsch (19:35):

Well said. If we’re in the Philadelphia Convention, one could say, “All right. Well, if the Committee of Detail makes all of these changes and no one really seems to kick up a fuss or say, ‘No, that’s not what we agreed to. That’s not what we came out at.’” You could draw a number of conclusions from that. You raise the example, though, in the convention that perhaps this gentleman, Gouverneur Morris was influential in thinking about a philosophy of executive power that they could live with. You cite him in several instances saying things that sort of look like the president that we have or that we got out of, or that emerged in the Constitution. And this is something I came to your book thinking, having heard that they looked at the New York State Constitution, which had the strongest executive of the state constitutions, and that was one they tried to fashion. You dismissed that or say it’s not as important as people make it out to be. So I’ll just throw all that at you.

Michael McConnell (20:29):

The Committee of Detail comes back. And as you say, nobody makes a big fuss. I think there are two logical explanations for why not, and we should not overlook this. We do not have good records of what was said at the convention after about this period of time. There’s a very important book by Mary Sarah Bilder called Madison’s Hand, which is a close examination of the records that we have. And Madison begins the convention taking copious notes, but there’s a period of time roughly corresponding to when the Committee of Detail’s report comes back. There’s a period of time in which he ceases taking notes. So all we have is sources from elsewhere, including the journal which reports the motions and the votes on things, but doesn’t report the debate. So it’s not impossible that when the Committee of Detail came back with these audacious innovations, maybe people did raise a fuss and we just don’t know about it because the records weren’t kept. The other logical possibility is that they did such a good job, both with respect to the federalism dimension and the executive verus legislative dimension, that the other delegates were satisfied. The Committee of Detail was itself a very representative group. They may have been able to predict what the full convention was willing to accept. This was a committee with one member from the Deep South, one member from the upper South, one member from the middle states, and two members from New England. That’s a very representative group.

I think our Constitution actually has an only incompletely unitary executive. I do believe that ultimately the president has authority. I think he can fire officers. I think the idea of an independent regulatory agency is completely contrary to the original constitution. I think that that’s wrong. But I do think that the structure that the framers set up creates at least a little bit of friction, and it may be a good thing.

Richard Reinsch (22:18):

Including James Wilson, right?

Michael McConnell (22:20):

Including James Wilson, who was probably the very best lawyer at the convention and one of the best lawyers in the United States. But as you say, so it did come back. It isn’t as if the draft then is just completely accepted. They go through several weeks of debate. They go through it in the full convention. They go through the Committee of Detail draft provision by provision. There are numerous motions for amendments. Some of them are accepted, some of them are voted down. The basic structure survives, but it’s not 100%. And as you say, Gouverneur Morris in particular has a quite sophisticated and more modern-seeming conception of the executive branch, and makes several proposals which are subtly worked into the draft. What Morris seems to have understood that very few people of that day did was, you shouldn’t think about it as a single person like the king or the president. You have to understand the executive branch as an institution, which is going to have multiple offices, and that the power, although the president will have ultimate power over the executive branch, he’s not going to be making all the day-to-day decisions. And because there are going to be officers who are only somewhat under his control, power is going to be diffused within the executive branch, so there are going to intra-executive branch checks and balances.

The most conspicuous example of this is that the Senate has the power to give advice and consent to presidential appointees to the principal officers. That means the president does not have full discretion to run the executive branch just with the people whom he most trusts. We just saw this with President Biden yesterday with his nominee for the Office of Management and Budget being turned down. Every president, no matter how popular or republican or democrat, they’ve all had some of their cabinet choices rejected by the Senate. That means that the executive branch is being run by people who are not just the toadies or lackeys of the president. And then the president does have the power to fire them if he doesn’t like what they’re doing. Certainly, President Trump did more of that than most presidents do. But the president can’t actually force them to issue the regulation or do the enforcement that he wants. He can give them instructions, but then his only enforcement mechanism for those instructions is to fire the officer. And that creates a certain distance between what the president wants to have happen and what actually happens in the executive branch. Effective presidents think about this, know about this, and figure out ways to make the executive branch work for them. Ronald Reagan was a genius at doing this. Others are not so good. Donald Trump didn’t have a clue, and so he was constantly fighting with his own people and did not have control over the executive branch. The result of that was a much less effective president than he might have been.

Richard Reinsch (25:43):

Would you shed light on this term, the unitary theory of the executive? Is the plan that comes out of Philadelphia a unitary executive?

Michael McConnell (25:53):

Unitary executive means that the ultimate power is all in one person. Now, at the convention, the delegates considered and rejected the idea of having a multi-headed executive. For example, remember Ancient Rome had two consuls. The first republic in France first had a committee and a directory of five, and then three consuls and so forth. They voted that down. We’re going to have a single-headed presidency, but the idea of a unitary executive is that that’s not just in form. That’s in reality that ultimately all executive power is vested in the president of the United States. So when he’s elected, he basically controls all executive power. I used to believe more in that theory than I do now having done this study. I now describe the system as ultimately unitary, but not immediately unitary. That is, the president cannot just by snapping his fingers make the executive branch do exactly what he wants it to do. Sometimes there’s going to be resistance. Trump encountered huge resistance within the executive branch. Even the people he named to office very frequently stood up to him. I think that that’s a feature of our Constitution, not a bug.

So I think our Constitution actually has an only incompletely unitary executive. I do believe that ultimately the president has authority. I think he can fire officers. I think the idea of an independent regulatory agency is completely contrary to the original constitution. I think that that’s wrong. But I do think that the structure that the framers set up creates at least a little bit of friction, and it may be a good thing. Because when you have a president who does things that are ill thought through or maybe even illegal, and there have been many presidents over our history that have done that, the cabinet officer who is in charge of actually putting that into effect can say no, or at least say, “Well, maybe.” I mean, in some instances with Trump, I think what the officer would say is, “Yeah. Well, we’ll get around to that, Mr. President.” And then, just quietly let the idea, the bad idea drop. That’s not orthodox, what you learn in political science about the Constitution, but that’s the way I think it works, and I think that’s the way the framers set it up.

Richard Reinsch (28:36):

There’s also just the sheer size now of the executive branch. Maybe we can talk some in a moment about the administrative state, what people refer to as the administrative state. We’ve talked about this some already. As an originalist, part of your book is a textual study of Article II, itself. What’s the logic of this article? There seems to be three major provisions or powers: A Take Care Clause, the Vesting Clause, and the Commander in Chief Clause. All of which, the arrangement of Article II is very different from Article I.

Michael McConnell (29:12):

Yes. Actually, I think Article II is the most difficult to understand. If you just pick up the Constitution as a casual person, not knowing much about it and just read it, I think the powers of Congress are fairly clear. I think the powers of the courts are fairly clear. But I think you would be hard pressed to understand the powers of the president just from reading Article II. But I think once you see the logical way in which the Committee of Detail created the structure, then it makes a whole lot more sense. The way I see it is this, that there are three different types of power given to the president. One type is prerogative power. This is power that is vested in the president by virtue of his office and cannot be touched by Congress. Examples of this would be, say, the pardon power or the veto power. The president can exercise those powers however he wishes. They can be and often are in service of things many of us would disapprove of, but Congress can’t do anything about it. Commander in chief power is like that, although it’s seriously limited in certain ways. Appointments powers and treaty powers are like that, but with the Senate having effectively a veto power through its power to advise and consent. So that’s one kind of power, his prerogative power. It’s obvious that the framers were a little worried about prerogative power, so most of them are trimmed down from the extent of a king. Maybe we should talk about that in just a second.

But the second kind of power is delegated power. This is where I think powers that are really of an executive nature are given to Congress. Take for example the power to spend money. It takes an act of Congress first. So for all of the delegated powers, the president cannot do anything … At least this is the formal theory and as it should work. They can’t do anything without Congress first authorizing them to do that. So that includes spending money. That includes borrowing money. That includes taxing. It includes going to war. It includes imposing criminal penalties, prosecuting people criminally for things, and a number of other things as well. So the president does not have any inherent constitutional authority over those things. But when Congress exercises its authority, then the president in effect gets delegated the power. The fact that the laws are passed and that the president then carries them into effect, gives the president a great deal of enforcement power. So that’s the second category. And then the third category is what I call residual powers, and this comes through the Vesting Clause. Your listeners should be aware that a lot of people disagree with me on this point, so this is my view. But the residual powers through the Vesting Clause are ones that are of an executive nature, and the president can go out and do them without advance authority from Congress, but Congress has the power to come in after the fact and limit or abrogate those powers. So this is where the president has the power to be the first mover, but the power to be a unilateral, final decision maker.

Richard Reinsch (32:49):

On those residual powers, would that include the power to initiate hostilities?

Michael McConnell (32:54):

No. I think it’s quite clear that Congress, only Congress can start wars, but it does give the president power to respond to attacks, to take defensive measures. In this modern world of ours where communications are instantaneous and things happen all over the world, it has become increasingly difficult to tell the difference sometimes between defensive and offensive measures. That was essentially the line that they had in mind.

Richard Reinsch (33:27):

Crucial question now of powers delegated by Congress to the executive branch and delegated to the executive branch to actually make rules, implement rules, judge or adjudicate violations of those rules. With this originalist research you’ve done, did it shape or change any of your thinking about executive power in the administrative state now?

Michael McConnell (33:54):

Yes, in some ways. I think there are insufficient safeguards for congressional power. I think that the Constitution assumed that Congress would be vigilant about protecting its own authority. And that probably was true for most of our history, but it is no longer true. So I think that the president now can get away with things that he probably shouldn’t. An example. For most of the convention, up until I think three days I think it was before the end in the middle of September, Congress was going to appoint the treasurer. It was going to be the only domestic officer of the United States that was named by Congress rather than being named by the president with senatorial advice and consent. Now, the treasurer would have authority to decide about spending. So the treasurer would look at the appropriations bill and see whether a proposed expenditure fits with it or not, and that person would be answerable to Congress. Today, that isn’t true. We do have a Congressional Budget Office, but it doesn’t have the authority. It can declare presidential spending illegal, but it doesn’t have any real enforcement authority. I think maybe that was a good idea. If we really want Congress to be in control of appropriations, then Congress needs to have some more control over how appropriations are interpreted. Because what we’ve learned from the last three presidents is that they can play fast and loose, and when they can play fast and loose, they do play fast and loose.

I also think that the administrative state needs to have some sort of way for Congress to check regulations pursuant to delegated power. The Supreme Court held in a case called the INS, Immigration and Naturalization Service versus Chadha that the legislative veto is unconstitutional. The legislative veto was the idea that when the executive branch issues regulations, that Congress can veto those regulations without the president being able to veto the veto. I think Chadha is a correct interpretation of our Constitution, but I think it’s a weakness in our Constitution. If I were to propose one or two amendments, one of them would be to allow for a one-house legislative veto of regulations initiated by the executive branch. Because after all, these are powers that were delegated to Congress. There’s something wrong if the executive branch can issue regulations which might be a rather wild misconstruction, intentionally wild misconstruction of a congressional intent, and then keep them in place. All that’s required today to keep them in place is for one-third plus one of either the House or the Senate to side with the president, because that’s all that it takes to sustain a veto, and the president gets away with it. I think that is not the way delegated power was expected to work out.

Richard Reinsch (37:13):

So when you think about the allocation of power between the Congress and the president, say a view that Philip Hamburger would take, lawmaking powers are delegated to Congress and that’s it. As a textual matter, they can’t then do another delegation to the executive branch. You wouldn’t take that position.

Michael McConnell (37:30):

No, actually I think that’s wrong. I mean, my good friend Philip, he’s a great historian. I think his position is only true with respect to regulations that affect the life, liberty, and property of individuals within the country. A motion was made by James Madison very early in the convention, on about the fifth day of debate in the convention when they were trying to figure out what to do about Charles Pinckney’s reaction to the original executive power plank. Madison proposes that Congress be given most of this power, but be permitted to delegate it back to the executive. His motion read, and I’m quoting from it from memory, “That power that is not legislative or judicial in its character.” So you have to figure out, what did they mean by that? I think the absolute core of the legislative and judicial powers were the power to pass laws that affect people’s life, liberty, and property, and to issue final adjudication. Now, a lot of today’s executive power does exactly that, and I think that is unconstitutional. But a lot of it doesn’t. There are many. The most important powers of the president involve administering governmental properties, spending money, exercising foreign affairs powers. Doing all kinds of things that do not actually affect individual people’s personal liberty and property. Madison’s motion would have explicitly allowed that. So what happened to the motion? It was voted down, but the leading speech against it simply said it’s unnecessary. That will be implied. But that’s implied, not in the terms that are already there. So if that was unnecessary rather than objectionable, unnecessary, then I think it’s fair to say that reflected the delegates understanding of the way delegated power would work.

We shouldn’t think of all delegations of power as being in the same boat. Some are of an inherently legislative or judicial nature, and that should not be allowed. But a lot of the delegated power is simply re-delegating to the executive powers that were considered to be executive under the British constitution, and that there’s nothing wrong with the president being given delegated power over that. Again, nothing wrong in the sense that Congress can do it if it wishes. But everything, it’s Congress that gets to decide. As a policy matter, I should say, I think Congress should be more parsimonious and careful in its delegation. But in terms of constitutional authority, I think they can do that. I mean, an example of this is over immigration. Remember Trump’s so-called Muslim ban. That statute allows the president of the United States to restrict any group of people from entering the United States that he thinks would be contrary to the public interest, which is why Trump was able to issue such a sweeping order. He doesn’t have to answer to anybody for that. And in spite of that particular order being so controversial, it was eventually upheld by the US Supreme Court. Congress used a shovel to give the president power rather than a teaspoon.

Richard Reinsch (41:11):

Sounds like we need a master framework or set of legislation along the lines of Madison’s order to help us think better about delegation.

Michael McConnell (41:21):

I think so, because a lot of the modern delegation is based on just really on … To call it a lie is too extreme. The Supreme Court has said over and over that simply delegation of legislative power is unconstitutional, and yet they never actually strike it down. It’s such a bizarre area of constitutional law because the Supreme Court says one thing, and then just does exactly the opposite. It would be so much better if we went to, say, Madison’s proposal, or there presumably are alternatives as well that are more careful in setting forth what the metes and bounds of delegated power can be, and then stick to them rather than saying that delegations are sort of unconstitutional in principle and then never doing anything about them.

Richard Reinsch (42:19):

Michael, I think that’s a perfect place to end. We’ve been talking with Michael McConnell, author of the new book, The President Who Would Not Be King: Executive Power Under the Constitution. Thank you so much for joining us today.

Michael McConnell (42:30):

Thank you, Richard.

Richard Reinsch (42:32):

This is Richard Reinsch. You have been listening to another episode of Liberty Law Talk, available at lawliberty.org.

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