The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation
![handle is hein.journals/cdozo15 and id is 103 raw text is: THE MERR YMAN POWER AND THE DILEMMA
OF AUTONOMOUS EXECUTIVE BRANCH
INTERPRETATION
Michael Stokes Paulsen *
INTRODUCTION
Most everybody today concedes some degree of executive branch
autonomy in the interpretation of federal law. The examples most
frequently given of areas of executive interpretive autonomy involve
situations where the President interprets the law incident to the exer-
cise of those constitutional powers that are thought to be exclusively
presidential (and thus unreviewable by the courts), such as the pardon
and the veto.1 The President may grant a pardon (it is generally con-
ceded) on legal grounds rejected by the courts. For example, he may
issue a pardon based on his opinion that a conviction was unconstitu-
tional, notwithstanding the judiciary's contrary conclusion as to the
constitutional propriety of the conviction. Presumably, the President
could base his pardon on a disagreement as to statutory interpretation
as well; that is, he may believe a criminal conviction to be founded on
an improper reading of some statute. It is also widely recognized that
the President may veto a bill for any reason or no reason at all, in-
cluding constitutional reasons previously rejected by the Supreme
Court. To generalize: the executive branch is conceded the power to
interpret the law autonomously-that is, independently of the consti-
tutional views of Congress or the courts-in any area where its action
* Associate Professor of Law, University of Minnesota Law School. This article is a revi-
sion of a paper presented at Benjamin N. Cardozo School of Law's symposium on executive
branch interpretation of the law, November 15, 1992. I would like to thank Robert Delahunty
for his countless insights and suggestions. I would also like to thank John McGinnis, Dan
Farber, Dan Troy, Frank Easterbrook, John Harrison, Tom Merrill, David Strauss, and Geof-
frey Miller for their comments on an earlier version of this paper. Of course, the ideas and
errors remain the responsibility of the author.
1 See generally, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-4, 35-
36 (2d ed. 1988) ([S]o long as [other governmental actors] do not involve themselves in justi-
ciable controversies coming within the subje6t-matter limits of Article III, the Supreme
Court's view of the Constitution cannot be brought to bear, and those other governmental
actors will be free to interpret and apply the Constitution as they deem best.) (citing examples
of pardons, vetoes, and legislators' votes for legislation); GERALD GUNTHER, CONSTITU-
TIONAL LAW 21-23 (12th ed. 1991) (citing examples of pardons and vetoes); PAUL BREST &
SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND
MATERIALS 91 (3d ed. 1992) (vetoes); id. at 1550-52 (pardons and vetoes). See also Frank H.
Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 905 (1990) (No one would
take seriously an assertion that the President may not interpret federal law.).
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The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation
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