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I know it sounds easy on the surface. Constitutional powers are conferred through constitutional text, whereas statutory powers are conferred through legislation.

But consider the following scenario (which is quite common in real life).

Under a hypothetical constitution, what if the document contains the following two provisions:

The President can issue pardons, amnesties, and commutations according to law.

The President can only exercise statutory powers with the permission of the Cabinet.

Under these two provisions, does the President's pardon power qualify as constitutional power or statutory power?

Furthermore, is the President always compelled to seek Cabinet approval before using pardon power, or can the President do so without one if the statutory law allows some personal discretion?

This thought experiment is meant to ask a broader question: What is the distinction between constitutional and statutory power?

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  • This isn't about any specific country, right? It's more of a general political theory question?
    – divibisan
    Apr 2 at 19:35
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    Why would one care what you call it? The only way to come up with good definitions is to know the purpose for which you intend to use them. Words aren't platonic ideals. They can have multiple meanings depending upon the context and have no real meaning in the absence of any context for the need to make the distinction.
    – ohwilleke
    Apr 2 at 21:30
  • @divibisan Not about a specific country. It's a general political theory question. Apr 3 at 4:49
  • Vote to reopen. Thought experiment aside, this is a straightforward political question, as summed up in the last line. Not sure why it was closed int he first place... Apr 3 at 13:51
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In broad strokes...

A constitution is what establishes (constitutes) the fundamental system of governance for a given state. It sets out the structure of governance, allocates certain basic powers to essential offices, defines basic rights, and the like. Constitutional powers are those written into that basic system of governance.

Statutes are laws written by legislative bodies (bodies established by the constitution, or by local communities for smaller jurisdictions). Statutes can be just about anything, but are generally constrained by the principles set out in the constitution.

A constitutional power, thus, is something inherent to the office, while a statutory power is granted after-the-fact through legislation. Statutory powers can be removed, amended, or expanded by subsequent legislation, or in many cases by the court system. Constitutional powers are more 'set in stone'; they cannot be altered without constitutional amendments, though the court system can generally place limits on their use and application.

Under the two provisions you've offered above:

The President can issue pardons, amnesties, and commutations according to law.

The President can only exercise statutory powers with the permission of the Cabinet.

The President would have a blanket constitutional power to issue pardons, amnesties, and commutations, but Congress would have the capacity to pass statutes specifying or limiting the exercise of that power. The upshot would likely be a series of legal tests: cases where Congress passes a specification or limitation statute, and the President sues on the grounds that Congress is infringing on the Office's constitutionally established powers. The Court's ruling in the case would effectively interpret the constitution to mean that the President's Constitutional power has specific limits, but would not reduce that constitutional power to a statutory power.

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