The Lawfare Podcast Lawfare Archive: Julian Mortenson on 'The Executive Power'
Jul 13, 2025
Julian Mortenson, a law professor at the University of Michigan and author of a pivotal article on executive power, delves deep into the implications of the phrase 'executive power' in the Constitution. He challenges the dominant narrative surrounding presidential authority, arguing it's fundamentally misinterpreted. The discussion highlights historical debates, the balance of power between branches of government, and the necessity of reevaluating presidential limits. Mortenson’s insights provoke thought on the evolving nature of constitutional law and its impact on modern governance.
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Conventional View of Executive Power Is Wrong
- The conventional understanding of "the executive power" in Article II is completely historically wrong.
- Julian Mortenson has developed a compelling alternative that aligns better with 18th-century legal and political thought.
Executive Power Drives Security Disputes
- Huge executive claims like ignoring statutes on torture or wiretapping rely on the traditional view of Article II.
- These claims underpin many major national security disputes and presidential powers in practice.
Vesting Clause and Foreign Affairs Gap
- Article II's vesting clause states simply, "The executive power shall be vested in a president..."
- Article II is sparse on enumerated powers, creating what some call a "foreign affairs gap" potentially filled by "the executive power."