Georgetown Center for the Constitution

The executive Power shall be vested in a President of the United States of America.

Related Citations

John C. Harrison, Executive Power (Jun. 3 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3398427.

Arguing that “executive power” by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests; it just refers to discretion to use the resources of government to perform the functions of government to the extent authorized by law.

Heidi Kitrosser, Interpretive Modesty, 104 Geo. L.J. 459 (2016).

Summarizing original meaning arguments for the unitary executive theory and critiquing those arguments through the lens of “interpretive modesty.”

Martin S. Flaherty, Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning, 84 Ford. L. Rev. 905 (2015).

Challenging the idea that there was a Founding-Era consensus on the public meaning of executive power.

Steven G. Calabresi & Gary Lawson, The Rule of Law as a Law of Law, 90 Notre Dame L. Rev. 483 (2014).

Arguing that the text and structure of the Constitution constrains the use of executive power with an implied standard of reasonableness.

Richard Alexander Izquierdo, The American Presidency and the Logic of Constitutional Renewal: Pricing in Institutions and Historical Context From the Beginning, 28 J. L. & Pol. 272 (2013).

Proposing that the Framers constructed the presidency with sufficient political authority to maintain the constitutional regime during times of political upheaval.

Eric Berger, Originalism’s Pretenses, 16 U. Pa. J. Const. L. 329 (2013).

Suggesting that originalism is an ineffective means of determining the constitutional bounds of executive power due to Founding Era disagreements about the meaning of the term “executive.”

Lawrence Rosenthal, Originalism in Practice, 87 Ind. L. J. 1183 (2012).

Arguing that plenary presidential authority over the removal of executive officials is incompatible with the original meaning of Article II.

Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. Chi. L. Rev. 377 (2011).

Challenging John Yoo’s originalist arguments that the Constitution authorizes strong presidential preeminence in war-making and foreign affairs.

Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011).

Arguing that the original meaning of “executive power” can only be fully understood by studying historical developments both before and after the Constitution’s ratification.

Joshua K. Westmoreland, Global Warming and Originalism: The Role of the EPA in the Obama Administration, 37 B.C. Env’t. Affs. L. Rev. 225 (2010).

Claiming that originalism supports a unitary executive theory of presidential power and that such a theory justifies the President’s use of executive orders to combat climate change.

John Yoo, George Washington and the Executive Power, 5 U. St. Thomas J.L. & Pub. Pol’y 1 (2010).

Documenting how President George Washington and the Founding Era Congress interpreted the Vesting Clause.

Robert G. Natelson, The Original Meaning of the Constitution’s “Executive Vesting Clause”—Evidence from Eighteenth Century Drafting Practice, 31 Whittier L. Rev. 1 (2009).

Presenting eighteenth-century drafting practices as evidence that the drafters of the Constitution intended the Executive Vesting Clause to merely designate the President as an executive, not confer broad authority upon him.

Ingrid Wuerth, An Originalism for Foreign Affairs?, 53 St. Louis U. L.J. 5 (2008).

Describing several normative arguments for originalism and attempting to apply them to foreign affairs.

Harold J. Krent, From a Unitary to a Unilateral Presidency, 88 B.U. L. Rev. 523 (2008).

Arguing that Article II embraces some form of unitary executive but that President Bush’s conception of executive power over the administrative state is far more expansive than the Framers intended.

Gary Lawson, Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis, 87 B.U. L. Rev. 289 (2007).

Arguing that Eric Posner and Adrian Vermeule’s book, Terror in the Balance, presents a theory of presidential power that unwittingly tracks with an originalist understanding of the Vesting Clause, which allows the President to use whatever means are “necessary and proper” to exercise his constitutionally vested powers.

Karl Manheim & Allan Ides, The Unitary Executive: Federal Courts Have Almost Always Rebuffed Assertions of Unchecked Power by the Executive Branch, L.A. Lawyer (Sept. 2006).

Contending that the unitary executive theory is inconsistent with the Founders’ conception of executive power.

Saikrishna B. Prakash & Michael D. Ramsey, Foreign Affairs and the Jeffersonian Executive: A Defense, 89 Minn. L. Rev. 1591 (2005).

Responding to objections to the Jeffersonian theory that the President has power over a plethora of foreign affairs.

Chrisopher S. Yoo, Steven G. Calabresi, & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 Iowa L. Rev. 601 (2005).

Concluding a series of articles chronicling the ongoing battle between the President and Congress over control of the administration of federal law, from the Founding Era to the present.

Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).

Arguing that the text of the Constitution and historical sources do not support the idea that the Vesting Clause grants the President all foreign affairs authority not expressly granted to other branches.

Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701 (2003).

Proposing that Founding Era documents and debates point to the executive power as primarily giving the President the power to execute federal laws and to control governmental officers who execute federal law.

Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. of Legis. 1 (2002).

Arguing that the use of executive orders and presidential directives to make law violates the Framers’ intent in drafting the Vesting Clause.

Daniel A. Farber, Playing Without a Referee: Congress, the President, and Foreign Affairs, 19 Const. Comment. 693 (2002) (reviewing H. Jefferson Powell, The President’s Authority Over Foreign Affairs: An Essay In Constitutional Interpretation (2002)).

Arguing that author Jeff Powell’s proposal in his book, The President’s Authority Over Foreign Affairs, to reach a settlement on the President’s foreign affairs power is unworkable because the historical record does not provide a definitive theory of presidential foreign affairs powers.

Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963 (2001)

Examining the text of the Constitution, the theory of separation of powers, and the debates of the First Congress to conclude that the President may not dictate to agency heads substantive decisions entrusted to them by law.

Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451 (1997).

Documenting the development of the unitary executive over the course of the first fifty years of the United States’ constitutional history.

Ronald C. Kahn, Presidential Power and the Appointments Process: Structuralism, Legal Scholarship, and the New Historical Institutionalism, 47 Case W. Res. L. Rev. 1419 (1997).

Arguing that insights into presidential power can be gained through the application of the historical institutional approach.

Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996).

Arguing that the historical record reveals that the Framers did not intend for the President to be a unitary executive.

Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541 (1994).

Responding to Lessig and Sunstein’s article, The President and the Administration, and making a textual and historical case for the unitary executive theory.

Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994).

Arguing that the theory that the Framers intended to create a strongly unitary executive is “plain myth.”

Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23 (1994).

Positing that the Framers created a powerful, unitary executive office for reasons of energy, accountability, and separation of powers.

Kevin H. Rhodes, A Structure Without Foundation: A Reply to Professor Froomkin, 88 Nw. U. L. Rev. 1406 (1994).

Providing a textualist and structuralist response to Michael Froomkin’s criticism of the author’s earlier article, The Structural Constitution, which suggested that the Executive Department is unitary and hierarchical.

A. Michael Froomkin, Still Naked After All These Words, 88 Nw. U. L. Rev. 1420 (1994).

Critiquing Calabresi and Rhodes’ theories of executive power presented in their three articles The Structural Constitution, A Structure Without Foundation, and The Vesting Clauses as Power Grants for being, among other things, overly formalistic.

A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994).

Critiquing Calabresi and Rhodes’ theories of executive power presented in The Structural Constitution and offering an alternate structural theory about Congress’s ability to restrain the executive branch.

Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).

Drawing from historical and textual sources to argue that the president has a general authority to protect the personnel, property, and instrumentalities of the United States from harm.

Cass R. Sunstein, The Myth of the Unitary Executive, 7 Admin. L.J. of Am. U. 299 (1993).

Lawrence Lessig, Readings By Our Unitary Executive, 15 Cardozo L. Rev. 175 (1993).

Arguing that the view that the Framers embraced anything like the modern unitary executive theory does not comport with originalism.

Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992).

Examining the text of Articles II and III and suggesting that 1) the Framers intended Congress to have limited congressional power to restructure the executive department; and 2) theories of limited congressional jurisdiction-stripping power compel a unitary executive.

Jules Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385 (1989).

Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596 (1989).

Arguing that originalism provides little support for the contention that congressional authorization of independent administrators is unconstitutional.

Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443 (1987).

Arguing that the text of the Constitution grants Congress the power to limit the President’s attempts to influence informal rulemaking.

Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984).

Examining the text and drafting of the Constitution to determine constraints on Congress’s ability to structure the administration of law.

Edward S. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953).

Documenting Founding-Era debates, statements, and court cases on executive power and chronicling Founding-Era presidential action in fields of recognized congressional power.