Founding Executive Power in America

I was first introduced to Charles Thach’s Creation of the Presidency, 1775-1789: A Study in Constitutional History, in 1997, when I took Robert Scigliano’s graduate seminar on the presidency at Boston College.  At that time, study of the presidency seemed to be in decline in professional political science.  The conventional thinking then was that the presidency didn’t offer the opportunity for data analysis that could be found in Congress or in voting behavior, and, as a result, political scientists trained in the behavioral tradition could not advance and test theories on the presidency.   In the last fifteen years, however, study of the presidency has become more popular.  Scholars associated with American Political Development have changed the way we think about presidential leadership in the context of party building and regime maintenance.  Scholars affiliated with the public law tradition found ample material and controversy in the administrations of Bill Clinton and George W. Bush to revisit normative and interpretative questions concerning the impeachment power, the electoral college, the pardon power, the war power, and the prerogative power.   Within mainstream political science, scholars discovered that “unilateral presidency” afforded a convenient way to measure data and build theory concerning the president’s power to issue executive orders, trade agreements, singing statements, and proclamations.

Given this renewed interest in presidential power, scholars have also returned to the study of the presidency before the twentieth century.

In this context, Thach’s slender volume is an essential tool for anyone interested in understanding the forming of the presidency.  To my knowledge, it is simply the best short reference on the subject.   But what is most interesting about Thach’s book is that it questions the common distinction between the modern presidency and the founders’ presidency while at the same time reinforcing it.

Thach’s thesis is an important one. In his view, the most important development with respect to the presidency in the Federal Convention of 1787 was the move to an independent and equal executive.  Central to this independence and equality was the move to have the president elected by some body not connected to the other departments of government.  The move to a more powerful executive, by contrast, was more inevitable.  Under the Articles of Confederation, Congress saw that it needed to place administrative duties in committees as administration became more complex and difficult, and yet Congress was “conspicuously unwilling to divest itself of power” (48).  That is, in the national government there was movement toward a “personal separation of functions or of internal administrative organization” but there was not movement toward an independent executive (60-61).

Before we move to this development, it is worth pausing to notice that in Thach’s account we are reminded that there was an in fact an executive power under the Articles. That executive was a collection of permanent agencies whose jobs became more and more specialized.  These agencies remained committees of Congress rather than separate and independent, but they were executive nonetheless.  By 1787, Congress had learned that that Congress was not up to the details of administration.

For Thach, the key move was not making an executive branch but rather making that branch independent of Congress.  This may seem like old news, but Thach reminds us of at least one important implication: “There is no need to cross the Atlantic to find an important model of the American presidency,” because the British model tended to ministerial government which undermined executive control over administration.  In place of this ministerial model, one state provided the example of how to achieve executive independence: the New York constitution  “afforded the only American example of a government by a constitution actually controlling the departments of government and at the same time a completely independent and very energetic and active chief magistrate” (159).  In Thach’s view, then, the founders of the presidency were not the British writers on executive power but rather those who were able to locate the path toward executive independence.  Accordingly, credit for authorship of the presidency “belongs to the little group of men who determined the construction of the New York constitution, Jay and Gouverneur Morris,” and also “to James Wilson belongs the crystallizing the concept and laying it before the Convention” (160).

Thach is a reliable guide to the twist and turns of the Convention. He is especially good at showing how the contest over representation between the large and small states influenced the debates about scope and form of the executive powers of the Senate.  We are reminded by this account that the debates about the role of the Senate were about questions of federalism as much as they were about questions of separation of powers. Given the change in federal state relations since 1789 and since the publication of Thach’s book in 1923, this point serves as a gentle rebuke to those of us today who forget Madison’s confession in Federalist No 37 that the Great Compromise created a “fresh struggle” during later debates at the Convention.

But Thach’s argument is also important for its treatment of the removal power. He rightly noticed that the creation of the presidency was incomplete in 1787, but instead of looking to Washington’s administration for important precedents, Thach turned to the so-called Great Debate of 1789. That debate began when Congress created the State Department and noticed that the Constitution did not specify who had the power to remove executive officials.  Four positions quickly emerged: removal by impeachment; removal by president subject to consent of Senate; removal by congressional discretion; or removal by the president alone.

The presidential position emerged victorious, and, as Thach notes, the important implication was that the Senate would not be viewed as an executive council.  Under the winning view, when the Constitution gives the Senate participation in executive matters, those are exceptions rather than the rule because the executive power is vested in the president. As Thach points out, this move carried with it the argument that the vesting clause was a grant of power rather than a summary description of powers enumerated later in Article II.

Thach could not know how important this development would be in the twentieth century.  In the 1980’s, conservative legal writers began using the term “unitary executive” to defend presidential control over foreign policy and over the executive branch.  This argument from the unitary executive now has several strands, but for our purposes it is important to notice that even though most of the recent attention has been with respect to foreign policy, the argument is also important with respect to domestic policy in general and to the removal power in particular.  Central to the domestic unitary executive is the argument made by James Madison in the Great Debate of 1789, namely, that the president must possess the power to remove in order to make executive administration “responsible” to the people.  This argument is essential for the unitarians because it offers a normative argument from democratic theory in support of executive power. It is complicated, however, by the near certainty that Madison, given his 1793 writings on the treaty power, would not support the extension of this unitary argument into foreign policy.  It is also complicated by the fact, obscured in Storing’s 1969 introduction (included as an appendix), that Hamilton probably didn’t support strong presidential removal powers.  The argument for the new unitary executive strangely combines Madison and Hamilton without notice.

This brings us to thinking through the central contribution and central deficiency of Thach’s book.  Thach correctly emphasizes James Wilson’s argument that the president should have power directly granted by the people, and he closes by praising unnamed great presidents. These men, he writes, exercised “powers fearlessly, independently,” by “striving each to be the ‘man of the people,’ to serve as a mouthpiece for the national will, and be the guardian of those great national interests intrusted to him” (160).  Thach does not seem to consider the possibility that a strong executive can be a danger to liberty, and the imperial presidency seems to be indistinguishable from his account.  But Thach’s contribution is reminding us that presidential power is not a merely a matter of the powers that the president has.  Rather, as the authors of The Federalist argued, presidential power was also about the “will” to use that power.  Thach thus shows us that there is something in the “original spirit of the constitution”  (161) that challenges the distinction between the modern presidency and the original presidency. Under constitutional design, presidents ground their authority in the public will.

The problem is that Thach’s fine book does not consider whether the creation of the presidency fits the development of the presidency. Was the constitutional presidency, for example, changed by Jefferson’s Revolution of 1800, the development of the party system, or TR’s argument that the president is steward of the people? It would seem that each in his view would be a fulfillment of original design, but that conclusion is complicated by another question: how clear is it that each of these changes are compatible with the others, and, if they are not compatible, which is most compatible with constitutional design? To be fair, this criticism is close to saying that Thach should have written a different (and bigger) book.  But it is also to point out that Thach’s analysis does not provide us with a way to determine if or how the presidency today is different from the original presidency.

But this deficiency still exists within current political science.  Scholars of unilateral power, for example, typically limit their study to presidents since FDR or Truman on the supposition that the pre-modern presidency has little to offer with respect to the study of unilateral orders.  Similarly, scholars of prerogative often treat prerogative by thinking about Hobbes and Locke, or Jefferson and Lincoln, without considering whether changes in the presidency’s relationship to public opinion have changed the nature of prerogative and its judgment.  All this is to say that we still lack a way to put formal power under law and informal power under public opinion into the same analytical space.  Or, to put it differently, Thach points to a possible path by reminding us that the presidency belongs to neither Madison nor Hamilton, but there is still much more work to be done to understand the potentialities and limits of the original presidency he describes.