Imperial from the Beginning: The Constitution of the Original Executive

Abstract

Wouldn't it be nice if we could have an American presidency that was not too strong, not too weak, but just right? Saikrishna Bangalore Prakash argues he has found the formula to achieve this ideal in Imperial from the Beginning. Prakash lays out an understanding of the American executive between “those fearful of executive authority,” who require all presidential action to be justified by “specific grants of authority found in Article II, sections 2 and 3,” and “those who celebrate executive decisiveness, secrecy, and energy [who] go to the other extreme,” viewing the vesting clause as a universal grant (pp. 320, 321). Prakash's alternative argument suggests that the founding generation got it right: the vesting clause endows the president with substantial general executive powers qualified by other clauses in Articles I and II. This design creates a “unitary executive” empowered to direct all governmental administrative activity, execute all federal law, and conduct foreign affairs (p. 17). Yet limiting clauses enjoin presidents from waging preemptive war, ignoring parts of statutes thought unconstitutional, wielding extraconstitutional emergency powers, or claiming executive privilege.