Presidential powers

[Emsworth]

Alexander Hamilton argued as follows:

"The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.

"The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, 'The executive power shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free gov ernment. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument."

[A18]

Hamilton has the right idea, but that doesn't tell you what the scope of the phrase "the executive power" is. We have to look to those authorities that were traditionally wielded by executives.

[Emsworth]

I would have to disagree with Hamilton. One of the most important rules of construction is, in the words of Francis Bacon: "As exception strengthens ... in Cases not excepted, so enumeration weakens it in Cases not enumerated." Why would the Framers enumerate the powers of the President, if their intention was to allow the President to exercise powers that are not enumerated as well? The enumeration would have no purpose. Hamilton contends that the enumeration merely highlights the principle aspects of the executive power, but this is not a convincing explanation.

I would argue, however, that the power to "take Care that the Laws be faithfully executed" is fairly broad, and includes (for example) the power to remove federal officials from office.