The seal of the president of the United States features an eagle clutching the arrows of war in its left talon and the olive branch of peace in its right, a fitting symbol of the expansive powers of the American executive. But one might just as well have substituted a pen and a telephone to symbolize the powers claimed by the Obama presidency, which used these blunt instruments to eviscerate the lawmaking powers of Congress.
By declining to enforce federal immigration and drug laws on policy grounds, Barack Obama essentially invented an ex post facto legislative veto. And by claiming the power to bypass the Senate in international relations, he committed the United States to a dangerous deal with Iran. Is this really the presidency that the Framers created? And how should President Donald Trump interpret those powers?
Imperial from the Beginning offers a historical account of the powers of the presidency that will engage and edify scholars and laymen alike. It is essential reading in this first year of the Trump administration, a year in which the Republican party lays claim to both political branches of government and is poised to shape the future of the federal judiciary for decades to come. The stakes of the 2016 election were (as the president is wont to say) huge, and the GOP swept the deck. Unless the president provides disciplined and principled leadership, however, this victory at the polls may turn into a lost opportunity.
Breathtaking in its scope and coverage, this book underscores the historic potential of the new administration by offering an erudite and thoroughly readable account of the development of the American presidency. The author is the James Monroe Distinguished Professor of Law at the University of Virginia. A former clerk to Justice Clarence Thomas, Saikrishna Prakash is among the legal scholars most frequently cited by the Supreme Court in its opinions. Moreover, he is an originalist, which accounts for his methodical approach to interpreting the text of the Constitution and his scrupulous attention to historical sources.
Of his interpretive enterprise, Prakash writes:
But the author is no wag. Nor, for that matter, is he a butcher or a diviner. He is a lawyer, a scholar, and—in both these callings—a disciplined originalist. To him, the contours of the national executive constituted in 1789 present themselves not in omens and vagaries but in English, colonial, and early state institutions, in the discourse of the founding period—and above all, in the text of the Constitution itself.
However, the text of the Constitution presents challenges. We can scarcely read a dozen words into Article II before controversy arises. What does Article II mean when it proclaims, “The executive power shall be vested in a President of the United States”? It all depends on what the Framers understood executive power to encompass. Here, Prakash argues that the 18th-century understanding of executive power encompassed the execution of laws, the management of foreign affairs, and control of the military. These were powers, he notes, “which required energy, vigilance, secrecy, and responsibility”—all of which the Constitution institutionalizes in the office of the president.
If this account of the presidency strikes the reader as decidedly kingly in nature, that is because it is. In 1774, James Wilson, one of the architects of the American presidency, explained the scope of legitimate royal authority in this way:
One might just as easily substitute the word “king” with “president” and have a more or less accurate inventory of the president’s Article II powers. But just because the powers of the presidency are kingly, it does not follow that they are absolute. As Wilson told the Constitutional Convention, “all know that a single magistrate is not a King.”
The Framers constituted a republic with a truly magisterial executive, but the executive is kept in check by the other branches. For example, the treaty powers, the powers of appointment, and war powers are shared with Congress, while the judiciary has the power to review the constitutionality of many executive acts. Nevertheless, the president’s powers are kingly in that they resemble, in many respects, the powers of the 17th-century English monarchy, including the power to serve as commander in chief, the veto power, and the clemency power. But the Framers abandoned other kingly powers, such as the power to serve as the head of an established church and the power to appoint members to the legislature, because they were incompatible with free government.
From his title to his very last page, Prakash effectively engages with Arthur M. Schlesinger Jr.’s notion of the “imperial presidency,” not as an epithet but as a meaningful description of executive power. Greater attention could have been paid to certain constitutional controversies. For example, simply saying of sole executive agreements that “the president may use his executive power to make them” does little to explain how they differ in form and substance from Article II treaties, which require the “advice and consent” of two-thirds of the Senate. And focusing solely on whether the executive has the power to decline to enforce laws that he deems unconstitutional does little to explain whether the president also has the power to decline to enforce laws that he deems impolitic.
These are minor quibbles, however, with a work that is as magisterial as the office it describes. Professor Prakash is to be congratulated on explaining so important an area of American constitutional history in so accessible and engaging a fashion. Our new president would do well to put this volume at the top of his reading list.
Tara Helfman teaches at Syracuse University College of Law and is coauthor of Liberty and Union: A Constitutional History of the United States.
