Executive Vesting Clause

The executive Power shall be vested in a President of the United States of America.

Article II, Section 1, Clause 1

The Executive Vesting Clause (or "Vesting Clause") grants the President those authorities that were traditionally wielded by executives. Accordingly, the President may control federal law execution by directing and removing executive officers. The clause also accords the President those foreign-affairs authorities not otherwise granted to Congress or shared with the Senate. Thus, the President can control the formation and communication of foreign policy and can direct America's diplomatic corps. Because the Constitution nowhere assigns or shares these foreign-affairs powers, they remain part of the executive power granted to the President by the Executive Vesting Clause.

The Articles of Confederation lacked an independent chief executive. Instead, the Continental Congress exercised the executive power, appointing and dominating the secretaries of the executive departments. Unfortunately, law execution under the direction of a distracted, plural executive was neither vigorous nor swift. Congress likewise proved a poor steward of foreign affairs, with American diplomats complaining that Congress could not act with the requisite speed or secrecy. Similar problems plagued state governors. Though state constitutions formally created separate executives, most state executives were nearly as weak as their federal counterparts, because state constitutions typically subordinated state executives to the state legislatures. For instance, some state constitutions explicitly made executive authority subject to legislative limitation. Other times, the executive power was shared with a council. In that era, legislatures routinely hamstrung or usurped executive powers.

Resolving to avoid the problems plaguing state and national executives, the Constitution's makers created an energetic, responsible, and unified executive. A single executive could demand vigorous law execution by subordinates and avoid the dissension that would arise from disagreements amongst plural chief executives. A unitary executive would also make it possible to hold the executive responsible, because all eyes would be drawn to the chief executive rather than to some plural executive, where each executive would attempt to claim all the credit and shift any blame. James Wilson spoke for most when he remarked that a "single magistrate" would supply the "most energy, dispatch, and responsibility" to the execution of the laws, a view echoed by Alexander Hamilton in The Federalist No. 70. Indeed, the Framers rejected both the idea of plural chief executives and the creation of an executive council, because either proposal would serve to weaken and shield the chief executive. The Anti-Federalists well understood the Framers' design and criticized the unitary executive, the lack of a council, and the manner of his election.

In discussing the need for a unitary executive, the Founders also confirmed the chief executive's primary law-enforcement power. In particular, delegates spoke of the President executing federal law himself and controlling the law execution of executive subordinates. Likewise, the delegates spoke of the President's principal foreign-affairs role, oftentimes referring to the Senate's role in treaty-making as a limited exception to the grant of foreign-affairs authority to the President. The President's residual control of foreign affairs is most clearly seen in the vigorous actions of the Washington administration. The Founders believed that law execution and a residual control of foreign affairs, the two most important executive branch functions, were best overseen by a single, responsible, independent chief executive.

The Executive Vesting Clause's general rule that the President enjoys those powers traditionally vested with executives (i.e., the executive power) is subject to two important limitations. First, the President lacks executive authority explicitly granted to Congress. Hence the President cannot declare war, grant letters of marque and reprisal, or regulate commerce, even though executives had often wielded such authority in the past. In these instances, Congress retained portions of the executive power that the Continental Congress had wielded under the Articles. Second, specific constitutional provisions may check customary executive authority. Notwithstanding his executive power, the President cannot make treaties or appointments without the advice and consent of the Senate. Likewise, the President's pardon power is limited to offenses against the United States and does not extend to impeachments or violations of state law.

Some statesmen and scholars have doubted whether the Executive Vesting Clause really grants any power at all. Some have claimed that the "executive Power" merely refers to those specific powers enumerated elsewhere in Article II. Others have argued that the Executive Vesting Clause does no more than designate the title and number of the apex of the executive branch. To claim more for the Executive Vesting Clause supposedly would make the rest of Article II redundant. There are reasons to reject such doubts. First, these arguments shunt aside the late-eighteenth-century understanding of executive power. The phrase "executive Power" was not used as an empty catchall meant to encompass any and all authority granted by a constitution to an executive. The phrase encompassed, at a minimum, law execution and foreign-affairs powers.

Second, traditional rules of statutory interpretation require us to take seriously the differences in phrasing across the three vesting clauses. Article I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States....") makes clear that it vests no authorities separate from those enumerated in the rest of Article I. In contrast, Article III, Section 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may...establish.") clearly vests the federal courts with judicial authority. The Executive Vesting Clause reads like its Article III counterpart, in sharp contrast to the Article I introductory clause.

Third, although the title and number theory attempts to avoid redundant readings, it fails on its own terms. Because the rest of Article II makes absolutely clear that there would be only one executive styled the "President" (provisions in Article II repeatedly mention a "President" and use the pronoun "he"), the title and number theory would render the Executive Vesting Clause itself redundant. If every reading of the clause yields some redundancy, then arguments about redundancy cannot supply a reason for preferring one reading over another.

While the Executive Vesting Clause is most often associated with law execution and foreign affairs, the clause may grant authority beyond these areas. For instance, many believe that the clause supports an executive privilege that enables the President to shield intra-executive communications from Congress and the judiciary. Others contend that the clause grants the President certain immunities in court, such as immunity from suits challenging his official actions. Perhaps the clause also grants the President certain "emergency powers" to take extraordinary actions during national exigencies.

The clause has played a rather limited role in constitutional litigation. With some notable exceptions—such as Justice Robert H. Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952)—the Supreme Court apparently has accepted the notion that the Executive Vesting Clause grants powers beyond those enumerated in the remainder of Article II. Most famously, in Myers v. United States (1926), the Court cited the Executive Vesting Clause as the source of removal and supervisory powers over executive officers. A more recent case, Nixon v. Fitzgerald (1982), cites the clause as a source of three powers (law enforcement, foreign affairs, and a supervisory power over the executive branch). Even Morrison v. Olson (1988), which upheld the constitutionality of the Independent Counsel Act, acknowledged that the Executive Vesting Clause granted the President control over prosecutions.

Yet despite the judicial willingness to accept that the clause grants power, judicial decisions have limited the clause's reach. Post-Myers, the Supreme Court essentially permitted the creation of a fourth branch of government by indirectly sanctioning the congressional creation of independent agencies that simultaneously exercise legislative, executive, and judicial power. Additionally, Morrison upheld the constitutionality of independent counsels because the Court concluded that the good-cause removal restriction at issue in the case did not "unduly trammel on executive authority." If Morrison is taken at face value, it suggests that while the Executive Vesting Clause grants substantive powers to the President, the Congress may create officers who can exercise such powers independent of the President.

In a case touching upon foreign affairs, the judiciary has recently affirmed that the executive power grants foreign-affairs authority to the President. See American Insurance Ass'n v. Garamendi (2003). This marks a departure from prior case law, which had grounded the executive's foreign-affairs powers not in any constitutional text, but in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936).

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Sai Prakash
David Lurton Massee, Jr., Professor of Law
Sullivan & Cromwell Professor of Law
University of Virginia School of Law