The President Who Would Not Be King: Executive Power under the Constitution

The University Center for Human Values Series

by Michael W. McConnell, Stephen Macedo (Preface)

Vital perspectives for the divided Trump era on what the Constitution's framers intended when they defined the extent--and limits--of presidential power

One of the most vexing questions for the framers of the Constitution was how to create a vigorous and independent executive without making him king. In today's divided public square, presidential power has never been more contested. The President Who Would Not Be King cuts through the partisan rancor to reveal what the Constitution really tells us about the powers of the president.

Michael McConnell provides a comprehensive account of the drafting of presidential powers. Because the framers met behind closed doors and left no records of their deliberations, close attention must be given to their successive drafts. McConnell shows how the framers worked from a mental list of the powers of the British monarch, and consciously decided which powers to strip from the presidency to avoid tyranny. He examines each of these powers in turn, explaining how they were understood at the time of the founding, and goes on to provide a framework for evaluating separation of powers claims, distinguishing between powers that are subject to congressional control and those in which the president has full discretion.

Based on the Tanner Lectures at Princeton University, The President Who Would Not Be King restores the original vision of the framers, showing how the Constitution restrains the excesses of an imperial presidency while empowering the executive to govern effectively.

Genres: Politics, Law, Government

440 pages, Hardcover

Published November 10, 2020

About the author

Michael William McConnell (J.D., University of Chicago, 1979; B.A., Michigan State Univesity, 1976) is professor and Director of the Stanford Constitutional Law Center at Stanford Law School, and a senior fellow at Stanford University's Hoover Institution. He served as Circuit Judge of the United States Court of Appeals for the Tenth Circuit, 2002–2009. He has additionally held professorships at University of Chicago Law School, the University of Utah, and S.J. Quinney College of Law, as well as visiting professor at Harvard Law School and at the New York University School of Law.

Reviews

[Dallin · Rating 5 out of 5]

A terrific analysis of the constitutional structure of the presidential office. I really appreciated that this book showed how the powers of the monarch and Parliament were translated by the Framers into our American system--some were given to Congress, some to the president, and some denied to both. That was not something I had heard much about before. McConnell's analysis of the balance between congressional and presidential prerogative was really illuminating, as well as his insight into modern-day presidential questions. It's readable, but he takes for granted that you're pretty familiar with the figures of the Constitutional Convention. Highly recommended!

[Christian Dibblee · Rating 3 out of 5]

Professor/Judge McConnell has suggested a very interesting theory about the presidency. It revolves around the prerogative powers of the British monarch, their nature in British practice, and their assignment to various branches of the American govt by the Founders.

It’s extremely interesting. I really appreciated this new paradigm for considering executive power. Unfortunately, some questions remain unanswered. For example, McConnell didn’t do much to explicate what the Commander in Chief power entails or includes. Perhaps more pressing, at no point does he really wrestle with the duty of the Tale Care Clause and prosecutorial discretion. Obviously, I’m sure others have. But I would’ve been interested in that topic and it’s relation to his theory.

That said, he did convince me that the Framers contemplated a larger role for Congress in foreign policy. And that the Youngstown Steel trichotomy—though well written and relied upon—has serious holes.

Beyond that, the writing style is somewhat pedantic and academic. I hesitate to put much stock in that, though. McConnell puts forward a novel and compelling theory, worth reading even if the prose can be a bit tough to chew on at points.

[Evan Þ. · Rating 5 out of 5]

This constitutional law book by retired law professor and judge McConnell (not to be confused with Senate minority leader Mitch McConnell) could hardly be designed to appeal to me more. McConnell looks deep into the framing and early history of executive power under the Constitution, arguing that we need to understand it against a backdrop of the British monarchy. The Framers, he argues, took British royal prerogative and consciously chose to deny some parts to the new federal government, give others to Congress, and leave still others with the President - some explicitly and others implicitly - so that he would not become the king they feared. I love understanding the law in light of history like this.

He then applies these theories to some more recent cases, approving of the results in some cases but by different reasoning, but not others. For example, he very much favors the unitary executive theory, but he also approves of Congressional power in some aspects of foreign relations. Even though I now doubt the practical worth of the unitary executive, I can't fault his reasoning on textual or historical grounds.

[Paul Sand · Rating 5 out of 5]

Last month on the blog I linked to a George Will column that favorably referenced this book by Michael W. McConnell ("Stanford law professor and former federal judge"). So I put in an Interlibrary Loan request at UNH, and voila, A few days later Tufts sent it up to Durham.

Very on-topic, given the recent "No Kings" theme adopted by recent anti-Trump street protests. It is ©2020, and a continuing thought as I read was how much more McConnell could have written on his topic based on the Biden years, and (so far) Trump II.

One example of McConnell's current thoughts is seen in the amicus brief he signed onto, along with a bunch of other Constitutional scholars in support of the plaintiffs challenging the legality of Trump's "Liberation Day" tariffs. One of the attorneys involved, Ilya Somin, excerpts at the Volokh Conspiracy:

What unites these amici is a shared conviction that process matters—that how we govern is as vital as what we decide. The powers to tax, to regulate commerce, and to shape the nation's economic course must remain with Congress. They cannot drift silently into the hands of the President through inertia, inattention, or creative readings of statutes never meant to grant such authority. That conviction is not partisan. It is constitutional. And it strikes at the heart of this case.

This dispute is not about the wisdom of tariffs or the politics of trade. It is about who holds the power to tax the American people. May a President, absent a clear delegation from Congress and without guidance that amounts to an intelligible principle, unilaterally impose sweeping tariffs under laws never designed for that purpose? This is not a debate over outcomes but a test of structure. It asks not what should happen, but who decides.

McConnell's book is an impressive piece of scholarship, going back to the origins of the country's governmental design. Appreciate the difficulty the Founders faced; it wasn't as if they had a lot of good examples around the world to choose from! The prime example they had to work with was: England, as ruled by George III. You might remember from your history books that they were not fans.

But (on the other hand) they had a pretty decent grasp of what powers and duties were involved in ruling a country, and many of them were steeped in the works of Montesquieu, Blackstone, Locke, et al.

That said, it's surprising they did as well as they could, given interstate rivalries and suspicions, the continuing threat of slavery, and so on. Their only major botch was their design of presidential elections, which only survived until 1804.

(Minor botch: the Constitution left unspecified about which branch of government had the power to recognize foreign countries. This was sort of "settled" in 2015's Zivotofsky v. Kerry; McConnell's not a fan, calling the SCOTUS ruling in that case "less-than-obvious".)

That said, most of today's controversies about presidential powers aren't new at all. The Constitution kept some issues ambiguous! And some of SCOTUS's decisions come in for McConnell's withering criticism. Most notably, for its relevance to current events, is Humphrey's Executor, which limited the President's power to dismiss officials in "independent" agencies. McConnell is pretty convincing there.

But as legal scholarship goes, I'm not even at the "junior dilettante" level. Many of the issues McConnell discusses are currently under debate; to his credit, McConnell deals with opposing views respectfully, but also forcefully.