Vol. 26 No. 3 (July 2016) pp. 50-53
IMPERIAL FROM THE BEGINNING: THE CONSTITUTION OF THE ORIGINAL EXECUTIVE, by Saikrishna Bangalore Prakash. New Haven, CT: Yale University Press, 2015. 454pp. Cloth $45.00. ISBN 9780300194562.
Reviewed by Louis Fisher, Scholar in Residence at the Constitution Project and Visiting Professor, William and Mary Law School. Email: firstname.lastname@example.org.
From the title of the book and early chapter headings (including “A King Under the Title of President” and “Constituting ‘His Highness’ the President”), readers might think that Saikrishnam Bangalore Prakash is offering the U.S. President as a replica of William Blackstone’s king, who had power over all external affairs, including the power to declare war, make treaties, and to appoint ambassadors. But the Introduction of Imperial from the Beginning quickly belies that. “When Presidents exercise the right to decide whether the United States will wage war,” (p. 3). Prakash writes, “they act contrary to the original Constitution. . . . The Constitution grants many traditional executive powers to Congress, such as the power to decide to wage war” (p. 3). Prakash notes that “executive privileges and immunities, while fitting in more thoroughly regal systems, are best seen as foreign to the Constitution’s republican monarchy” (p. 4). The term “republican monarchy” is in obvious tension, sounding more like an oxymoron. Why would Prakash describe a system of self-government and separation of powers, operating through checks and balances, as a monarchy?
In discussing the Constitution’s framework for foreign affairs, Prakash acknowledges that many of the Framers “believed that the English Constitution ceded too much foreign affairs power to the Crown and that some aspects of foreign affairs had legislative overtones (such as the war power)” (p. 111). In drafting the Constitution, a number of exceptions “to the grant of executive power ensured that the President would have fewer foreign affairs powers than the English monarch” (p. 111). Under an 18th-century English legal principle, the Crown could “do no wrong.” Americans, as Prakash notes, “knew from experience that he could” (p. 221). They would also learn the capacity of Presidents to do wrong.
Still, Prakash occasionally reintroduces the theme embodied in the book’s title, such as when he writes: “The picture that emerges from the founding era is of an elective monarch, constitutionally limited in a number of significant ways” (p. 10). He claims that “the Constitution’s presidency was redolent of monarchy,” (p. 13) while admitting that, “[f]or many, monarchy implies life tenure, with heirs succeeding to the throne. . . . Monarchy implies singularity; where authority is split among many, one is tempted to say that there is no monarch” (p. 13). What is gained by using the word “monarch”? What evidence justifies its use?
As Prakash correctly notes, the Senate in 1789 debated whether to the President should be styled “His Highness the President of the United States of America and Protector of the Rights of the Same.” An alternative proposal was “His Excellency.” Prakash does not mention that a House committee strongly opposed these titles, believing that “it is not proper to annex any style or title to the respective styles or titles of offices expressed in the Constitution.” (ANNALS OF CONGRESS 1789, 331). Representative Thomas Tucker of South Carolina said that, if Congress intended to vote on such titles, it should add “an embroidered robe, a princely equipage, and finally, a crown and hereditary succession.” He added, “This spirit of imitation, sir, this spirit of mimicry and apery will be the ruin of our country. Instead of giving us dignity in the eye of foreigners, it will expose us to be laughed [*51] at as apes” (ANNALS OF CONGRESS 1789, 333).
Representative James Madison of Virginia joined in the attack on the Senate’s proposal, stating that high-sounding titles for the President would “diminish the true dignity and importance of a republic,” warning that borrowing titles from Europe would be “servile imitation . . . odious, not to say ridiculous also.” And why elevate the President to be “Protector of the Rights of the People” (ANNALS OF CONGRESS 1789, 334)? Certainly that duty rests with Congress as well. Under this onslaught, the Senate agreed not to confer a title on the President. Congress wanted no part of recognizing in the President some type of monarchy, however defined or limited.
Prakash concedes that, when we read the Constitution today, “the semblance to monarchy is difficult, almost impossible to perceive. The text seems wholly republican in nature” (p. 25). Article IV guarantees each state a republican form of government, “suggesting that the Constitution likewise created a republic at the federal level, for who would erect a federal monarchy over a series of republics? Moreover, in the same article the Constitution speaks of republican ‘citizens’ rather than regal ‘subjects’” (p. 25). But Prakash then writes: “by giving the president command of the military, treaty authority, and powers to appoint to office, and dispense mercy, the Constitution guaranteed comparisons to European monarchs” (p. 25). This description conflicts with Prakash’s earlier recognition that the Constitution vests the power to go to war in Congress, not the President, and overlooks that the President’s authority over treaties and appointments is shared with the Senate. Prakash concludes Chapter 1 with these words: “Of George W. Bush, it was said that he acted as a monarch. It is said of Barack H. Obama. And it will be said of future chief executives” (p. 27). But partisan attacks do not add monarchical qualities to the office of the President.
Further into the book, Prakash describes the model of the “Unitary Executive as a “Foetus of a Monarchy’” (p. 17). Proponents of a “Unitary Executive” insist that all constitutional powers to execute the law are vested in the President but that has never been the case. In 1789, when the First Congress agreed that the President had authority to remove department heads, it also recognized that the Comptroller in the Treasury Department did not serve at the pleasure of the President. Instead, he was recognized as carrying out quasi-judicial work in deciding claims against the government and other matters.
Prakash describes the scope of the Comptroller’s duties in some detail, but he states that the Comptroller was subject to presidential control and that President Washington “directed his comptroller.” What kind of control? By reviewing a comptroller’s decision and revising it? There is no evidence that Washington ever attempted to do that. Prakash says that Washington directed the Comptroller to examine a particular claim, but certainly not that Washington sought to decide or control the outcome. As Prakash explains, Washington “might have concluded that when a law authorized a specific officer to make a decision, only that officer could take action, and that the president ought not interfere, much less direct the final decision” (p. 190).
Prakash mentions that Attorney General William Wirt in 1823 advised President James Monroe that he could not revise the decisions of accounting officers, but Prakash says that “reading of the Constitution is flawed” (p. 95). Because the President “has the power to execute the law, he may execute any federal law himself” (p. 95). Even at the time of the Monroe administration, however, Wirt said that such a burden would be “an impossibility.” It was not the duty of the President to audit public accounts. In one opinion, Wirt told Monroe that any interference by the President in the settlement of accounts would “be illegal.” Subsequent attorneys general provided the same advice to Presidents. For example, Attorney General John Crittenden advised President Millard Fillmore in 1850 that a decision by the Comptroller on a claim was “final and conclusive” on all branches of the executive government. Presidents had no business getting involved: “the settlement & adjustment of [*52] accounts have been left to accountants” (Lawrence 1884, 412).
As Prakash points out, the scope of the President’s removal power reached the Supreme Court in the 1926 case of MYERS V. UNITED STATES. As he says, the Court “embraced the Madisonian view” of an implied power of the President to remove department heads. That is largely true, but Prakash does not explain that the Court specifically recognized two significant limits to the President’s removal power. The first was: “Of course there may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer’s interpretation of his statutory duty in a particular instance” (MYERS V. UNITED STATES, 272 U.S. 52, 135). This is what Chief Justice Marshall in MARBURY V. MADISON called “a ministerial act,” where an executive officer’s obligation is not to the President but rather to a statutory policy assigned by Congress. The second limit on the removal power was: “Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control” (MYERS V. UNITED STATES, 272 U.S. 52, 135). These are decisions by comptrollers, accountants, and auditors described by a number of attorneys general.
The theory of the Unitary Executive is undercut in a number of passages. With regard to foreign affairs, Prakash states that the Constitution “left the most consequential executive powers with Congress and made other vital powers exercisable only with the Senate’s consent” (p. 141). He acknowledges that Congress “has created numerous executive fiefdoms called ‘independent’ agencies, and the Supreme Court has sanctioned their constitutionality” (p. 323).
In several places, Prakash states Congress is limited to the powers expressly assigned to it. Because Article I begins with “All legislative Powers herein granted shall be vested in a Congress,” this clause “evidently does not grant Congress any power not enumerated. . . .” (p. 70). Similarly, an “obvious” reading of the Constitution leads one to conclude that Congress “is limited to its enumerated powers.” (Prakash 2005, 241). Yet all three branches, from the beginning, had access to a combination of enumerated and implied powers. The latter were those that could be inferred from enumerated powers. Because it is the duty of the President to see that the laws are faithfully carried out, if a department head is unable or unwilling to carry out a law, the President has an implied power to remove that person. Because the “judicial power” of the United States is vested in the Supreme Court and inferior courts, courts may need to reach constitutional questions through the power of judicial review, even though that is not expressly stated. And because the legislative power is placed in Congress, in order to exercise that power in an informed manner Congress has the implied power to investigate, issue subpoenas, and hold in contempt those who fail to testify or submit requested documents.
According to Prakash, the President “may forbid executives from investigating and prosecuting him” (p. 108). Yet Nixon could not stop the prosecutions in Watergate that drove him from office. Independent Counsels not only investigated Clinton while in office but made it clear they would pursue him after he left office, leading him to make a financial settlement with Paula Jones and admit that he had committed perjury. Because the Iran-Contra investigation had the capacity to impeach Reagan, he was the first President to completely waive executive privilege. Prakash places this limitation on Presidents: “Nor can the president finance and supply the militia by using his own wealth or that of private donors” (p. 151). The Reagan administration, however, sought and received funds from foreign governments and private citizens to assist the Contras, resulting in the prosecution and conviction of several people.
Prakash provides a closely researched analysis of various presidential duties, focusing primarily on the early decades. His work is thoroughly documented by more than 2,000 notes referring to original and secondary sources. Much of the [*53] book, however, is devoted to analyzing a range of presidential duties that are not related to the title’s theme about the President serving as some type of monarch.
ANNALS OF CONGRESS. 1789. 1st Congress, 1st Session, Volume 1.
Lawrence, William. 1824. DECISIONS OF THE FIRST COMPTROLLER IN THE DEPARTMENT OF THE TREASURY OF THE UNITED STATES. Washington, D.C.: Government Printing Office.
Prakash, Saikrishna. 2005. “Regulating Presidential Powers.” CORNELL LAW REVIEW. 91 (1): 215-57.
MARBURY V. MADISON, 5 U.S. 137 (1803).
MYERS V. UNITED STATES, 272 U.S. 52 (1926).
© Copyright 2016 by author, Louis Fisher.
Editor Note: This review first appeared in THE FEDERAL LAWYER, June 2016.