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Mr. Madison and Executive Power: Our On-Going Conversation

July 18, 2017

 

There’s a lot of conversation happening in our country today about rule of law, executive powers and constitutional rights. While Americans, natural born and immigrants, waved their flags and celebrated the freedoms we enjoy on Independence Day, I reflected on Mr. Madison’s legacy and wondered how he would feel today.

 

James Madison arrived in Philadelphia for the Federal Convention in 1787 without a firm conception of the executive.  But three things were concerning to him:

  1. That the executive be kept free of improper legislative influence.

  2. That a joint executive/legislative council of revisions have a limited veto power over national laws.

  3. That the appropriate extent of the executive’s powers depend on how the executive was to be chosen and how long he would serve.

Attempting to address the problems of a weak executive, Madison suggested the executive was to have “power to carry into effect, the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers ‘not Legislative nor Judiciary in their nature,’ as may from time to time be delegated by the national Legislature.” During the course of the Convention, Madison became concerned over the senate’s increasing power, and looked for ways to use the executive as a check on the senate.

           

            Madison’s letters stated “that the Executive power being generally vested in the President, every power of an Executive nature, not expressly excepted is to be referred thither.” Since removal was an executive power, it belonged to the president. Madison also wrote in support of the executive having removal power: “The danger of undue power in the President from such a regulation is not to me formidable. I see, and politically feel that that will be the weak branch of the Government.” Madison considered that the threat of impeachment was enough of a check on the president to keep him from abusing the power to remove appointees.

            While the removal power question may seem in hindsight to be of minor importance, it reveals several key aspects of Madison’s thinking on executive power. He considered the term “executive power” to be self-explanatory; it was the power to execute (that is, to carry out) the law. He believed that the Constitution had already clearly assigned this type of executive power to the office of the president. Finally, he expected that the executive branch would be the weakest of the three branches of government, since the president’s power to execute laws was not nearly as robust as Congress’s power to create laws.

            After contemplating the extent of executive power, James Madison wrote Federalist 47 that touts separation of powers between the executive, legislative and judicial branches and the checks and balances system.  Thank you, Mr. Madison.

                                     

 

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