The American conception of executive power represented a repudiation of monarchical claims of power, dating back to the absolutist assertions of King James I, and his son, Charles I, as well as the excesses of King George III, whom the colonists denounced as a tyrant. The stark lessons about executive power drawn from the history of monarchies are demonstrable and may be distilled in the words of James Wilson, who told his fellow delegates at the Constitutional Convention: “The prerogative powers of the British King” are “no guide to the powers” of the American Presidency. Indeed, during the founding era, as the political scientist, Robert Scigliano rightly observed, one of the salient means of tainting a political opponent was to label him as an advocate of prerogative powers. Such a label was deeply wounding and toxic to one’s political career. Accordingly, there arose a need for a new term to describe those powers wielded by an executive in a republican era. That need was filled through the invention of a new term of art: executive power. Seldom has a generation been so fearful of a political association. Perhaps only Americans accused of being “communists” or “communist sympathizers” in the Cold War period at the height of McCarthyism could well appreciate the utilization of “advocate of prerogatives” as such a deadly shaft.
Given that American Founders thoroughly rejected the premises and asserted powers of monarchs what, we may ask, were those claims to power, those tenets and principles, that constituted stern lessons and admonitions of what not to do, or what to avoid in the construction of the Presidency?
The Founders’ understanding of prerogative was derived from their keen study of history. Since the 13th Century, English legal scholars had been writing about the dimensions of the monarchical prerogatives. For roughly two centuries, the literary conception of the prerogative power was divided into two realms. On one hand, the prerogative was absolute and unrestrained when either domestic order was threatened or the defense of the realm was at stake. On the other, when the life, liberty and property of free subjects were at stake, the King was subject to the law of the land.
The royal prerogative mushroomed in scope and power in the 16th Century under the Tudor monarchs, particularly under Henry VIII and Elizabeth I. The expansion occurred in municipal affairs, for example, when the monarch asserted a dispensing power to regulate commerce and to grant monopolies of trade. The dispensing authority essentially empowered the crown to dispense with the execution of particular laws in particular cases. The expansion also occurred through the introduction of two new prerogatives. The first was monarchical resort to the issuance of royal proclamations that had the force of law. The second involved the creation of prerogative courts, in which the monarch and his council participated directly, and in which accused parties were denied the procedural protections afforded in the common-law courts.
The aggrandizement of power by the Tudors, and the repeated assertions of absolute power under the Stuart monarchs in the 17th Century, took the prerogative to new heights. This combination plunged England into a century of constitutional crises, the essence of which pitted prerogative powers against Parliament and the common law courts. It was manifested in the usurpation of parliamentary authority to make laws and spend money, circumvention of Parliament when it refused to fund wars by seeking revenue from private persons and foreign governments and, among other acts, removal of judges who failed to adhere to the King’s desires, which denied the possibility of judicial independence. It led, eventually, to Civil War and most dramatically, to the beheading of King Charles I.
It is true, of course, that the Revolution Settlement of 1688-1689, to which William of Orange agreed as he and his wife, Mary, assumed the throne, imposed severe limitations on the prerogative power, including the dispensing power, which had led Parliament to fear for its legislative authority. And it is further true that in the 18th Century Great Britain developed a system of government by cabinet ministers who also served as members of Parliament. As healthy as those measures were however, the period that more significantly influenced the American Founders was the mid-17th Century, the period of the Civil Wars, from which they emerged with the conclusion that monarchical powers, and even strong executive powers, represented a profound threat to liberty, law and the republican system that they were creating.
Consequently, the Framers denied to the President the traditional prerogative powers enjoyed by the English monarchy. Indeed, any doubts about their views had been laid to rest a decade before when, in the Declaration of Independence, King George III was charged with a long list of “injuries and usurpations.” In the Constitutional Convention, the Framers broke sharply from the English model for the conduct of foreign affairs. As we shall see in subsequent lectures, the President was made Commander in Chief but unlike the King of England, he had no authority to initiate war. The Framers, moreover, withheld from the President unilateral authority to make and conduct foreign policy. The President was the recipient of the power to receive ambassadors, but that was a clerk-like duty, devoid of discretion, a duty performed in most countries by ceremonial leaders. The treaty power, like the authority to appoint ambassadors, unilaterally exercised in England by the King, was divided between the President and the Senate. Of the prerogative powers exercised by the King, the only one of those powers vested in the President was the pardon power. And, in a historic move, the Framers abandoned the prerogative powers by making the President subject to impeachment. And lest we forget, the Take Care Clause of Article II represented a stark reminder that the President has a constitutional duty to faithfully execute the laws. Failure to enforce the laws, the Framers decided, rendered the President vulnerable to impeachment.