Unity of the Executive Branch: The Executive Branch is One, and that One is the President

 Article II, Section 1, provides “The executive power shall be vested in a President of the United States of America.”

The Senate is 100, the House is 435, but all Executive Power is held by one person! As Paulsen says, a “key characteristic of Article II is that it vest the entire ‘executive Power’ of the federal government in one person—in ‘a President of the United States.” As Paulsen continues (p. 56), although the Executive branch of government is staffed by thousands of executive officials, both petty and powerful, “All who work for the federal government do so under the authority of, and subject to the direction of, the President.”  

And again, as Paulsen reports, “Hamilton…explained why unity was critical: ‘That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree then the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.’”

As Hamilton also observed, the unity of executive power is of greatest importance when we are at war and the Commander-in-Chief has the power and responsibility to conduct the war.

As Paulsen concludes, under the Constitution “the President of the United States is the executive branch and possesses all of its powers.”

Discussion Question:

Suppose you work as a lawyer in the Justice Department and one of your tasks is to vet potential Supreme Court nominees. Although the President had run on a promise to nominate pro-life Justices to the Supreme Court, you discover that he is about to nominate a stealth pro-abortion judge (i.e., a judge with a conservative reputation who nevertheless has secretly supported pro-abortion causes). You know you could stop the nomination if you leak this information to friends of yours who are pro-life journalists. What should you do?

Now assume you serve a President who ran as a pro-choice candidate, and you learn that he is about to nominate a stealth pro-life nominee for a SCOTUS vacancy. Does this change your answer? Should it matter?

Is it ever justified for an executive branch employee to leak confidential or classified materials to the media? Or is Deep State resistance to presidential authority, in a very real sense, unconstitutional and contrary to the authority of subordinate executive employees.

Next, let’s focus on whether the President is vested with any legislative powers. Of course, under Article I, section 1, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The power to enact laws belongs to Congress, not the President.

However, under Art. II, section 3, the President may “recommend” to the Congress “such measures as he shall judge necessary and expedient.” And Art. I, section 7 provides for a presidential veto power as follows:

“Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.”

The veto power is an awesome power, but it is a negative power, the power to stop a bill from becoming law unless two-thirds of each House votes to override the veto.

Again, deadlock is a beautiful thing. The Constitution provides 3 veto points; one for the House, one for the Senate, and one for the President. And perhaps a fourth veto point under Marbury and judicial review. The purpose of this is to protect liberty and federalism from central authority, from national laws imposing one-size-fits-all taxes and regulations on free men and free women who reside in the States.

When national laws are stopped by one of the veto points, rather than one national scheme, we get 50 shades of federalism, 50 different ways to address the issue. Maybe a tax and spending increase in California. Maybe a tax and spending cut in Nebraska. Maybe school choice in Montana, and no school choice in New York. Decisions are made closer to home, closer to the people who are governed by the local laws.

 Most importantly, the President’s most important responsibility in a Republic, is to “take care that the laws be faithfully executed.” As Paulsen notes (p. 59), “the power to execute the laws is not a power to make the laws.”

Most Presidents have to be reminded of this limitation on executive power often and emphatically. Let’s talk about this in some length during class discussion of The Steel Seizure Case. Of course, the power to execute the law involves “judgement and choices… and this means that the President may decide not to prosecute all violations of the laws.” (Paulsen at 59) How far does this discretion go? May a conservative President decide not to prosecute violations of national gun laws? May a progressive President decide he will not seek to deport large numbers of undocumented migrants, but will instead grant work permits and certain benefits to these undocumented persons? Do a President’s policy preferences justify his decision to refrain from executing laws that he dislikes?