The Limits of Executive Discretion in John Marshall’s Constitutionalism

Abstract

Current debates on presidential power hinge on whether discretionary actions may be constrained by either Congress or the Supreme Court. In a little-noted remark in Marbury v. Madison, John Marshall considers the Court’s power to review political matters within the president’s sphere of executive “discretion.” On one hand, Marshall says that on discretionary matters, or “questions, in their nature political,” the courts “can never” restrict the executive acting “by the constitution and laws.” On the other, he declares it is the province of the Court “to say what the law is.” The tension at the heart of Marbury v. Madison invites us to consider what constraints Congress and the Court can impose on the president’s discretionary powers. Advocates of the Unitary Executive Theory claim Marshall supports the idea that the president possesses “complete” discretion in foreign affairs. This Article challenges that assertion by reconstructing Marshall’s understanding of the limits of presidential power in the realms of foreign affairs and war powers. Energy in the executive requires independent discretion, but those actions remain subject to institutional constraints. Marshall’s constitutionalism continues to shape debates today.