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*009] THE LIMITS OF EXECUTIVE POWER 263,

Case. It applies historical and structural methodologies to answer

those unexamined questions, assessing important consequences to

several current theories and cases concerning presidential power.

Part I of this Article lays the groundwork for a theory of

presidential power that is founded upon the structural allocations of

power in Articles I and II of the Constitution and the historical

reasons for those allocations. The construction of the presidency

owes much less to political theory or to a reflexive reaction to George

Ill than to two centuries of historical experiences in Great Britain

and America that shaped the Framers’ views on executive and

legislative powers. A detailed historical analysis of the royal

prerogatives and how they were used to establish dominance over

Parliament is necessary to understand how and why the allocations of

power in Articles I and II constitute a massive transfer of previously

held executive power to the legislative branch.

Part II examines prevailing theories of constitutional executive

power using the historical background and its underlying principles

to show the weaknesses of those theories and to support an alternate,

more plausible general theory of presidential power. First, in lieu of

creative but ultimately inconclusive arguments over indefinite powers

that are said to be “executive” in nature, implied powers should be

tied to the powers expressly vested in the President by Article II.

Thus, the implied powers of the President are few in number, but

important. The power to enforce the laws is necessarily implied from

the President’s duty to take care that the laws should be faithfully

executed. A presidential power over foreign affairs can be implied

from the enumerated powers to make treaties and to receive and

appoint ambassadors and other public ministers. The President has

broad discretion in choosing how to exercise these implied powers.

Second, these implied powers are not plenary in nature. They are

subject to three basic limitations: (1) the President may not, without

congressional authorization, use these powers to change domestic law

or to create or alter existing legal obligations; (2) these powers are

subject to regulation by Congress; and (3) in the event of a conflict

between the exercise of these powers and congressional legislation,

the latter prevails.

Each of these principles follows from the historical limits of

prerogative power, the decision to make express presidential powers

subject to legislative constraint, and the fundamental theorem that

Article II powers cannot be greater than the prerogatives legally

exercised by the King.

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