Choose any angle or subtopic to analyze under the federal constitution’s executive power and Prof. Michael McConnell addresses it in The President Who Would Not Be King. One of the country’s most accomplished legal scholars, McConnell has composed a book that will stand as the main point of reference for all other writing to come on Executive Power. And at a time when governing authority accumulates more and more in the executive branch (due to willing and unwilling actors in all three branches), McConnell’s book performs a useful public service by exhaustively chronicling Article II’s text, historical practice, and precedent. McConnell constructs a framework of Article II from the ground up by performing a close reading of the decisive work of the Committee of Detail, the Committee at the Constitutional Convention in 1787 containing Gouverneur Morris and James Wilson as its leading minds. However, this approach distinguishes McConnell’s work from the work of other self-described originalists. Among these originalists, there are slightly different angles on the problem of interpreting the meaning of Executive Power under Article II. As one digests McConnell’s argument, one realizes that his approach and some of the more popular originalist approaches produce meanings about Article II that may gently erode the surety of what we think we understand of the Executive Power.
Distilling the Drafters
McConnell’s most significant contribution to the scholarly literature is his thorough evaluation of Article II with a focus on its drafters. McConnell conveys that his book is “the first comprehensive account of the entire drafting history relevant to presidential powers.” In the Introduction, McConnell explains that, “[m]uch can be inferred from textual changes made during the Convention, even when they are unaccompanied by an explanation or even a reported discussion.” Gleaning reasonable distillations from the intent of the drafters of Article II is how McConnell distinguishes himself from other originalists who look only to the words of the Constitution as ratified. The activities of the Committee of Detail provide him with a historical record that allows him to trace changes in many elements of executive power across drafts of the constitutional provisions. These changes ought to inform an interpreter with crucial background animating the various provisions of Article II. McConnell insists that modern scholarship affirms the importance of the Committee’s work, particularly for “devis[ing] the principal elements in the constitutional framework for federalism, as well as the executive branch, interstate federalism, the amendment process, the Necessary and Proper Clause, and much else.” But McConnell’s main argument is that the drafters, particularly those men on the Committee, made “changes [that were] almost certainly deliberate and thus provide a reliable window into the original design” of the Constitution.
One representative example of how McConnell’s focus on changes across different drafts of the Constitution informs meaning appears in his discussion of the Committee of Detail’s handling of enumerated powers for both the legislative and executive branches. The Committee received a draft of the proposed Constitution and considered changes over the course of ten days when the Constitutional Convention was in recess. McConnell recounts background knowledge of how the Committee’s draft differed from the Convention’s earlier work. The Committee, for example, expressly rejected the Convention’s broad grant for Congress to “legislate in all cases for the general interests of the Union,” instead adopting limited, enumerated powers. McConnell notes that enumerating legislative power was a novelty at the time, with no states having done so in their constitutions by the time of the Convention. However, McConnell connects the Committee’s change of enumerating legislative power to the Committee’s change of a broad grant of executive power. The Convention originally had narrow enumerated powers of the executive. But the Committee revised executive power upward, after revising legislative powers downward via enumeration. McConnell argues this revision in tandem was no accident. Only by tracking the changes to executive and legislative power at the drafting stage can the meaning of each branch’s powers be understood. McConnell evinces that preserving the enumeration of executive power “may have been too difficult” to the drafters. These drafters would have lacked clarity on what precise powers an American executive should have, as opposed to a British king. Enumeration of legislative powers, however, satisfied both the role of state legislatures and the role of Congress. McConnell understands something more than trying to understand the original public meaning of the clauses themselves is required for distilling constitutional meaning.
McConnell’s approach to look back to the will of the drafters is seemingly at odds with those originalists who swear devotion solely to the original public meaning of the words of the Constitution, but not to an older generation of originalists. Before the rise of Antonin Scalia’s preferred approach, to understand the original public meaning of words and phrases of the Constitution, Robert Bork and Raoul Berger were well known adherents of original public intent originalism. As I have written elsewhere, “The ‘original public intent’ inquiry largely focused on what the drafters of legislation sought to enact.” Sure enough, McConnell, in an interview after the release of his book, reveals that he does not consider himself a doctrinaire, original public meaning originalist:
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. (emphasis added)
McConnell could not have made the extensive, coherent claims he did in the book about interpreting the contributions of the Committee of Detail to our understanding of Article II had he not implicitly understood those Committee members as possessing a rational will discernible by someone like McConnell who could engage in “filling in the details.” Indeed, no less an authority than one of the men on the Committee, James Wilson, endorsed such a view of interpretation when he wrote, “The first governing maxim in the interpretation of the statute is to discover the meaning of those who made it.” The convincingness of McConnell’s book therefore demonstrates the inadequacy of an original public meaning originalism that prides itself on avoiding the intentions, as demonstrated in the historical record, of those who shaped the Constitution.
Youngstown and the Error of Judicial Supremacy
But how would McConnell’s own account provide a better understanding of the Executive? He tests his approach to executive power against some of the most difficult cases in American history and how his approach would analyze the issues at play differently than the judges who oversaw those cases at the Supreme Court. The most prominent of these cases is Youngstown Sheet and Tube v. Sawyer, concerning the limits on the “open-ended grant” of executive power. Also popularly known as the “Steel Seizure case,” Youngstown arose out of President Truman’s actions to nationalize the steel industry during the height of the Korean War. Truman, inspired by previous actions of President Franklin Roosevelt and fearing a wave of strikes would shut down the productive capacity of the nation’s private steel mills and cripple the war effort, brought the mills under federal control but preserved the existing management and labor. The owners of the mills sued to challenge the grounds on which Truman claimed authority to seize the mills. At the same time, the President reported his action to Congress and invited Congress to make the legal situation clearer, either by producing the legislation to support his move, or to turn it down. Congress did neither, and that is how the issue came before the courts.
The Supreme Court heard Youngstown in mid-May 1952 and rendered its decision three weeks later, ordering Truman to return control of the mills to its private owners. The Court issued one of its fastest decisions in history, confirming the urgency of the case to ongoing efforts to conduct the war. Youngstown was also notable for being one of the rare times where a concurring opinion, authored by Justice Robert Jackson, became accepted as the operational precedent rather than the majority opinion.
Under Jackson’s oft cited concurrence in Youngstown, the most contentious area of separation-of-powers disputes occurs when Congress is silent and the President acts. Jackson’s concurrence holds that when Congress is silent and the President acts, the President’s behavior may be deemed constitutional depending on “congressional inertia, indifference, or quiescence.” “[I]mperatives of events and contemporary imponderables” may sustain executive action.
McConnell’s clarification of Justice Jackson’s famed “zone of twilight” is one of the main achievements of his book. McConnell’s basic thesis is that “separation-of-powers conflicts can often be resolved, at least provisionally, on the objective basis of text and structure, without wading into subjective swamps of pragmatism, functionalism, and political expediency.” The problem is that McConnell’s analysis of Youngstown confirms many of the errors that have led us to a modern juristocracy, emboldened by beliefs of judicial supremacy, without considering how the Founders, and even one of the justices in Youngstown, would have considered the case.
McConnell rightly notes that Jackson’s reasoning is an explanation that does not explain anything of substance. “Likely, in practice, those imponderables translate into the policy druthers of the Court.” McConnell’s remedy is to lean on the distinctions he makes in his book on residual power, prerogative power, and delegated power to clarify when the Court may strike down presidential activity as constitutional or unconstitutional. The prerogative power, McConnell details elsewhere, is “vested in the chief executive by virtue of his or her office, not requiring legislative authorization and not subject to legislative override or interference. Familiar examples from the United States Constitution are the presidential powers of veto and pardon.” However, the residual power is defeasible. In other words, Congress may claw and scale back certain executive powers. Finally, delegated powers may only be positively granted to the executive by Congress.
McConnell neatly outlines his analysis of Youngstown according to these three powers, delineating when a presidential act in the face of congressional silence is constitutional or not based on “the kind of executive power at issue.” McConnell’s approach differs from Jackson’s approach since McConnell focuses on how a Presidential action may be classified according to Article II’s powers (prerogative, residual, or delegated) while Jackson focuses on how a Presidential action may be considered in light of the statute at issue. Particularly in those instances of congressional silence, Jackson’s “zone of twilight,” McConnell’s approach provides a less malleable framework based on how to classify an exercise of power under Article II compared to Jackson’s approach which focuses on reading a statute according to a mix of legislative history and historical practice. McConnell has said that judges contemporarily reading this mix of legislative history and historical practice, in the “zone of twilight,” amounts to an imponderable exercise unfit for judging. Whether Jackson reached the right outcome in Youngstown is not McConnell’s central focus. An examination by the judges of whether Truman’s actions in seizing the mills were a legitimate exercise of the prerogative power would be McConnell’s focus.
No doubt McConnell’s framework is a more elegant solution than Jackson’s muddled notion of a “zone of twilight.” However, McConnell reaffirms Jackson’s underlying judicial philosophy. For both men, the Court has an intervening role to play in what are fundamentally tensions that should be resolved between the executive and the legislative branch. Chief Justice Frederick Vinson’s dissent made this contrary point: “there is no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will.” There were enough outlines provided by statute of what the executive was trying to fulfill until Congress could act and provide full determination to the federal government’s policy.
Surely under a departmentalist understanding of constitutionality each independent department of the federal government, including the Court, may weigh in on the constitutionality of actions of each department. However, part of restoring saner constitutional governance, presumably one of McConnell’s goals, must involve the political branches resolving their differences among themselves without automatic recourse to the federal courts to serve as effective final arbiter over every exercise of executive power. Although McConnell would not consider himself a proponent of judicial supremacy, his book’s endorsement to have the federal courts oversee each interpretive dispute by the political branches seemingly constitutes an implicit reaffirmation of judicial supremacy. Constitutionality as an ongoing conversation among the co-equal branches is more faithful to how the Founders understood the system they wrought. It is an indictment of our modern constitutional order that in times of crisis we often expect the executive and the legislative branches to operate only within the boundaries set by federal courts.
The President Who Would Not Be King is an ambitious and largely successful work of scholarship. Its positives overwhelmingly outweigh its negatives. Even if following in the modern trend reaffirming judicial supremacy, the book is a refreshing contribution to rethinking originalist approaches by distilling the reasonable will of the drafters of the Constitution.