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The Virtuous Executive

By Alan Z. Rozenshtein. Full Text.

As currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics.

This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. Certain character traits—referred to in this Article as the executive virtues—play an essential role in the proper functioning of Article II and the broader separation of powers. These virtues can and should be encouraged by courts, Congress, and other constitutional actors.

In this Article, Rozenshtein describes the executive virtues, shows how they capture the original understanding of Article II, and argues for their contemporary importance in light of the presidency’s ever-increasing power and discretion. The Article offers a preliminary list of the main executive virtues—loyalty, honesty, responsibility, justice, inclusiveness, and judgment—and describes how the constitutional requirement of executive virtue can be operationalized. For example, the Article shows how questions of executive virtue were central in Trump v. Hawaii (the travel-ban case), offer a revisionist defense of the impeachment of Bill Clinton, and argue in favor of more control over presidential primaries by party elites. The Article conclude with the observation that, as recent history demonstrates, the lack of presidential virtue can constitute a full-blown constitutional crisis.