Leave Article II alone

David French wants to rewrite the Constitution. Well, at least one sentence of it, for now. That sentence is the opening of Article II: “The executive power shall be vested in a president of the United States of America.” French believes this constitutional sentence is poorly written and an underlying cause to what he views as the overreaches of President Donald Trump. It is “vague and inexplicit,” which permits ambitious leaders to use its ambiguity to grab power. French wishes to amend this vesting clause to read: “A president of the United States of America shall execute laws passed by Congress.”

Of course, in David French’s view, Donald Trump is the main culprit necessitating this change. To explain the Trump administration’s supposedly anti-democratic view of the presidency, French uses a summary articulated by Harvard Law Professor Jack Goldsmith. He summarizes this view of presidential power with four points, a) The Constitution gives the president all of the nation’s executive power, b) The president can remove all executive offices at will, c) The presidential power to oversee law enforcement includes the choice whether or not to enforce particular laws, and d) The president can control the actions of executive officials.

In his argument, French misunderstands the Founders’ genius in creating the presidency. His proposed amendment to the Constitution would undermine that genius to the detriment of our republic rather than, as French believes, its restoration.

French admits that the overreach he sees in Trump has origins in earlier presidencies. However, the view of the presidential power attributed to the present administration did not bloom in the 20th century as part of a “modern” “imperial presidency.” Three of the four listed criteria go back at least to the Founding and were considered natural, necessary consequents of the president’s role.

Consider a) The Constitution does give the president all national executive power unless otherwise, explicitly stated. The listed powers found in the rest of Article II merely clarify and reinforce particular examples of executive power. Thus, if one could prove a power to be national in allotment and executive in nature, the president was presumed to possess the authority to exercise it.

This wording does not give the president limitless power. Instead, it required future Americans to know and apply a theory fundamental to our Constitution: separation of powers. Under that theory, executive power is understood to be in its essence different than legislative or judicial authority. To show an action to be in its nature executive presumptively gave it to the president. To show an action inherently legislative or judicial placed it presumptively outside presidential authority.

A definitive list of executive powers would have hamstrung the president in ways that undermined the office’s purpose within the Constitution. Executive power involves responding to a nearly endless string of constantly changing circumstances. Presidents must possess discretion in how to address them in the task of carrying out the law. Moreover, French’s proposed amendment wrongly limits the president’s executive power to only enforcing Congressional statutes. Executive power to enforce laws includes directly applying the Constitution—itself a law—in certain instances, not merely carrying out what Congress passes. Moreover, there must be an element in government who can swiftly and decisively address emergency situations for which existing laws at best generally anticipate. The single president was created to deal with such a circumstance.

In the immediate aftermath of the Constitution’s implementation, both Alexander Hamilton and James Madison made these arguments. This view continued to be held throughout the 19th century by men like Andrew Jackson and has been articulated in the 21st century by non-presidents such as Justices Neil Gorsuch, Antonin Scalia, and Samuel Alito.

Next, consider b) and d). If the Constitution vests all national executive power in the president, then all executive officers exercise the president’s constitutional power in a delegated fashion. To deny the president control over such officers allocates executive power where the Constitution does not place it. This presidential control must include firing subordinates. Otherwise, these officers could engage in actions that thwart the president’s attempts to exercise his vested executive authority.

This view, too, has an august list of American adherents. James Madison defended the position within the First Congress in 1789. Chief Justice John Marshall, William Howard Taft, and many others agreed.

The only marker Goldsmith lists and French uses that does not fit is c), the idea that presidents can choose whether or not to enforce laws. In most cases, such situations really are debates about the interpretation of the law and the discretion it gives to a president. Yet discretion in how to enforce is not the same as whether to enforce. Here, the proper response already exists in the present Constitution. The very nature of executive power precludes the claim that presidents can choose not to enforce the law. To give the president power to execute laws is to create the duty to do so. The remedy for such an issue resides in the text as is: The Constitutions specifically commands the president to “take care that the laws be faithfully executed.”

We separate out the functions of government because we know one human being is not capable of ruling perfectly. Yet we understand that one day we will experience for all eternity the visible rule of God. He will perfectly govern as our judge, our lawgiver, and our king (Isaiah 33:22). Till then, our Constitutional system is the right one to enable and to limit human government in America. Don’t listen to David French. Leave Article II as it is.