Article II of the Constitution– the “executive article”– is the repository of the President’s constitutional authority. In comparison to Article I—the “legislative article”—it is relatively short. The powers granted to the President are few in number and, it may be said, far more modest than those granted to Congress. The disproportionate allocation of authority between the two branches was explained and justified in James Madison’s famous statement in Federalist No. 51: “In a republican government, the legislative authority necessarily predominates.” The nature and form of the republic that the Framers were creating certainly did influence the constitutional distribution of powers. History—the Founders’ history—played an important role as well. Professor Louis Henkin has illuminated this experience:
“Unhappy memories of royal prerogative, fear of tyranny, and distrust of any one man, kept the Framers from giving the President too much head. . . . In the end and over-all, Congress clearly came first, in the longest article, expressly conferring many, important powers; the Executive came second, principally as executive-agent of Congressional policy. Every grant to the President, including those relating to foreign affairs, was in effect a derogation from Congressional power, eked out slowly, reluctantly, and not without limitations and safeguards.”
The Framers’ approach to enumerating presidential powers reflected James Madison’s proposal that it was essential “to fix the extent of the Executive authority . . . as certain powers were in their nature Executive; and must be given to that department,” adding that the Executive power should be “confined and defined.” And so it was.
We examine in the next section the issue of whether the President enjoys a prerogative power. If such a power is, by some means, attributed to the President, it is applied by some means other than enumeration, for the text says nothing about such authority. If it is an implied power then it may be found in the “Vesting Clause,” as some scholars have contended. That issue is addressed in the next section as well.
In this discussion, we are focusing on the shape and content of the Presidency as defined by second article of the Constitution. Madison’s approach, embraced by his fellow delegates to the Convention, led to an articulation or enumeration of the President’s powers. The first sentence—widely described as the Vesting Clause or the Executive Power Clause—provides that “the executive power of the United States shall be vested in a President.” It was long ago concluded that this clause resolved the question of whether there would be a single or a plural Presidency, and what the title of the chief executive would be. Again, setting aside until the next session the question of whether the Executive Power Clause embodies a presidential prerogative, we may say that the provision refers to what the Framers agreed it meant: the executive power, as James Wilson and James Madison observed, is the power to faithfully execute the laws and make appointments to office not otherwise provided for by law. That was the meaning of the phrase, first introduced during the founding era as a suitable way to discuss the powers of the chief executive without invoking the dreaded term, “prerogative.”