LSR Fellow Nelson Tebbe Summarizes Michael McConnell's (Stanford Law) Recent Tanner Lectures on Human Values

Monday, Feb 11, 2019

When the framers of the Constitution met in 1787, they shared a conviction that the country needed an executive branch, something it had lacked under the Articles of Confederation. Yet at the same time, they were acutely aware of the dangers of monarchy. Their challenge, then, was to create a president that would be effective without becoming a king. In the Tanner Lectures on Human Values, Professor Michael McConnell examined that thorny problem, and he argued that the framers’ solution can guide contemporary debates over the scope and strength of executive power. Professor McConnell, a former federal judge who now teaches at Stanford Law School, delivered his lectures on November 28 and 29, 2018, and he titled them "The President Who Would Not Be King."

Professor McConnell opened his first lecture by recounting a famous moment at the constitutional convention. When the delegates began to discuss a provision of the Virginia Plan that called for all executive power to be vested in a “national Executive,” Charles Pinckney of South Carolina reacted by sputtering that the proposal would install a king. After Pinckney’s outburst, “a considerable pause ensu[ed],” according to the notes of James Madison. This famous moment is key to understanding the meaning of the provisions on executive power that were eventually enacted, according to Professor McConnell.

Why were the framers stunned into silence? One reason, Professor McConnell explained, was that the delegates recognized how difficult it would be to create an executive that would be effective without morphing into a monarchy. Another reason was that the person who was sitting as the chair of the convention at the moment of the pause was George Washington, whom everyone assumed would become the first President of the United States. The framers hesitated to debate the dangers of tyranny in front of the likely occupant of the office they were creating.

Professor McConnell stressed that the difficulty of shaping executive power is perhaps as acute today as it was at the framing. “Here we are, some 230 odd years later,” he said, “and we are faced with the same question: how can we have a president who will do all the things we expect of a president but not one who is going to be effectively a king? The problem seems more acute today perhaps than ever before.”

In the remainder of the lecture, Professor McConnell offered a solution that was grounded in the text of the Constitution, understood in light of the controversies that the framers were confronting at the time. To emphasize his textual approach, Professor McConnell distributed pocket copies of the Constitution to every audience member. He also candidly acknowledged the limits of his textual method, and he disavowed any suggestion that his method was the only or even the best one for thinking about executive power. But he did argue that referring to the text and its context was superior to interpreting Article II in a partisan way, so that any conclusions about particular debates about the presidency would come to depend on the party of the person who happens to be occupying the office.

Through a detailed reading of text and history, Professor McConnell then proposed a new framework for evaluating the powers of the presidency. In sum, if a power the president seeks to exercise is “prerogative,” a technical term that here means simply that it is specifically listed in Article II, then the president may exercise it even if Congress disagrees and tries to intervene. If a power is general and executive, and thus “vested in [the] President,” then the president may exercise it unless Congress intercedes. Finally, if an executive power is given by the text to the legislature, then the President may exercise it only if Congress affirmatively gives authorization. Professor McConnell suggested that this framework is attractive—it is clearer, and therefore more resistant to partisan manipulation by judges, than the current approach of the Supreme Court, first articulated by Justice Robert Jackson in Youngstown Sheet and Tube Co. v. Sawyer, the steel seizure case.

Two responses were offered to this first lecture. Professor Eric Nelson of Harvard University began by praising Professor McConnell’s proposed framework. Instead of taking issue with that solution, Professor Nelson used his time to complicate the suggestion that the framers aimed to create an executive that was somewhat weaker than a king—“monarchy lite,” as Professor Nelson called it. Rather, many of the framers who were most directly involved in shaping Article II actually understood that they were creating an executive that was stronger than the existing English model; they may even have been disappointed that their fellow delegates did not go further and create a president that had even greater powers.

Professor Nelson began his remarks in the same place as Professor McConnell: with the stunned pause that followed Pinckney’s suggestion that the president would amount to a king. Why were they stunned? One reason was that the proposed executive power would be vested in “a single person.” This phrase resonated with English history, suggesting to listeners that it would restore monarchial powers that the English kings had not enjoyed for generations. Though there were serious differences of opinion among the framers, many of them understood that the English king in theory had enjoyed certain prerogative powers that in practice were given to ministers who sat in Parliament and who exercised them without royal oversight or control.

To the complaint that the convention was recreating a monarchy that Americans had just fought a war to throw off, framers like James Wilson responded that the revolution actually had been fought against Parliament, not the monarchy. For example, although the king theoretically enjoyed the power to veto legislation, no English monarch had actually exercised that power for years. On this reading, said Professor Nelson, the framers were actually reviving powers that King George III had lost. They were creating an executive that was stronger, not weaker, than a king, and they welcomed that development at the time.

Professor Jeffrey Tulis of the University of Texas began his response by noticing how appropriate it was for Professor McConnell to be introducing his important new theory of executive power at Princeton University. He explained that it was “fitting that [Professor McConnell] present [his theory’s] major themes here at Princeton because his new book will be a twenty-first century update of a classic one by one of the greatest professors in Princeton’s long history, Edward Corwin,” whose book The President: Office and Powers was the leading study of the presidency for decades and is still admired today.

Professor Tulis praised Professor McConnell for showing that the Constitution’s text can give real guidance to contemporary lawyers, and for showing that the Supreme Court’s existing doctrine on executive power can and should be replaced with a more helpful and workable framework. However, Professor Tulis also suggested that both the existing doctrine and McConnell’s proposal suffer from excessive legalism. “I want to suggest,” he said, “that the very same argument that may well mitigate the most serious political pathologies of our time is also a symptom of those same pathologies.” Courts have increasingly taken on disputes that were meant to be resolved by the executive and legislative branches, and consequently judges have encouraged elected officials to abdicate their constitutional powers and responsibilities. Legalism surrounding executive power is a prime example of its dangers for our democratic system, Tulis concluded.

On the second day, Professor McConnell illustrated how his proposal would work by applying it to several contemporary examples. His aim, he clarified, was not necessarily to suggest that his solutions were perfect or even preferable, but instead to demonstrate just how far constitutional actors can get using no tools other than the Constitution’s text and its early history.

His first and main example concerned the delegation of legislative power to administrative agencies, which are part of the executive branch. Delegation of this sort is a principal feature of the modern administrative state, he recognized. Congress creates administrative agencies to oversee various aspects of federal policy—financial systems, air travel, electronic communications, food safety, etc.—and then it empowers those agencies to write regulations that actually constrain citizens’ actions. So long as Congress provides the executive branch with an “intelligible principle” to constrain its rulemaking power, the Supreme Court upholds the practice.

But the delegation of lawmaking power to executive branch agencies would be impermissible under Professor McConnell’s proposal. Congress may only delegate power to the president, under his proposal, if that power is executive in nature. Strictly legislative power—that is, the power to write rules that govern the property or conduct of people within the nation’s borders—may never be given to agencies.

Professor McConnell then gave several contemporary examples, involving not just delegation but also foreign affairs and military action, and argued that his framework could guide thinking over these problems in a clearer and more attractive way than the Supreme Court’s messy doctrine.

Professor Gillian Metzger of Columbia Law School was the first commentator on the second day, and she praised Professor McConnell for offering a novel theory of executive power—a notable accomplishment in such an active and crowded field of study. She also described it as “an elegantly simple and clear framework for assessing presidential power.” But she also raised a concern that Professor McConnell’s proposal was too clear.

“To put my concerns succinctly,” she began, “I find Professor McConnell’s account too clear, and I believe that its clarity comes at too great a cost. It may seem strange to condemn a constitutional theory for being too clear, but hopefully I can convince you that too much clarity about the presidency is a source for concern.” Constitutional principles concerning the presidency have emerged over time, and specifically in response to political developments, congressional action and inaction, and practical imperatives.

That process is legitimate, she argued, and it is necessary for constitutional doctrine to be capable of meeting the demands of lived reality. Ceding the flexibility of constitutional doctrine in this area comes at too high a cost, she argued. For example, delegation of legislative power is a central feature of administrative government and it is needed if the modern administrative state is to be able to function effectively to meet the governance demands of contemporary America.

Finally, Professor Amanda Tyler of Berkeley Law School used her opportunity to further complicate what she called the “king-as-foil idea.” In particular, she told a detailed story about the use and limits of executive detention power during wartime under the English monarchy. She suggested that this history paints an intricate picture of the constitutional power of the executive, one whose lessons are not always clear.

Professor Tyler ended her talk by quoting Justice Jackson’s opinion in the Steel Seizure Case: “‘We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.’” Professor Tyler suggested that Jackson’s remark was prescient. “Today, I think it’s fair to say that the legislative branch has effectively let precisely this happen. And the president has, for better or worse, stepped in to fill this void. The result, I fear, is that we are now left with an executive that looks just a little too much like a king in the old style. We should all welcome Professor McConnell’s contributions here to help us think about what we can or should do about just that.”