Executive Vesting Clause
The executive Power shall be vested in a President of the United States of America.
The Executive Vesting Clause (or “Vesting Clause”) grants the president the executive power traditionally associated with chief executives, subject to the many clarifications and constraints listed elsewhere in Article II. The Vesting Clause is best read as granting authority to direct and remove executive officers, a power to control the execution of federal law, and an interstitial power over foreign affairs.
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. Execution of the laws by a distracted, plural executive was hardly vigorous. 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 the states. Though state constitutions formally created separate executives, most were nearly as weak as their federal counterparts. Some executive powers, such as appointments and pardons, were granted to the legislatures. Other constitutions subjected executive authority to statutory limitation, meaning that constitutional allocations of power were default rules. Finally, executive powers occasionally were shared with, or checked by, a council.
Resolving to avoid the problems plaguing state and national executives, the Founders rejected both a triumvirate and a powerful executive council. Instead, they crafted an energetic, responsible, and (largely) unified executive. A single executive could act with vigor and speed and avoid the dissension that might plague a plural executive. A unitary executive also would conduce towards responsibility, because all eyes would be drawn to the chief executive rather than to a plural executive, where each executive would claim credit and shift blame.
In discussing the need for a unitary executive, the Founders repeatedly confirmed the chief executive’s law-enforcement power. James Wilson captured the spirit of the reform 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. Likewise, some Founders spoke of the president’s significant role in foreign affairs, discussing the Senate’s check on treaty-making as an exception to the grant of executive power. Early practices confirmed these readings of the Executive Vesting Clause. President George Washington took many actions not traceable to any specific foreign affairs clause in Article II, including issuing the Neutrality Proclamation, asking for the recall of French emissary, Citizen Genêt, and directing United States diplomats posted overseas. Similarly the first president directed federal law execution and executive officers of various sorts—soldiers, customs officials, the U.S. attorneys, and departmental secretaries, among others.
The Vesting Clause’s rule that the president enjoys those powers traditionally vested with chief executives admits of two limitations. First, the president lacks executive authority explicitly granted to Congress. Hence he cannot declare war, grant letters of marque and reprisal, or regulate commerce, even though some chief executives had such authority. In these instances, Congress retained portions of the executive power that the Continental Congress had wielded under the Articles of Confederation. Second, specific constitutional provisions check customary executive authority. Despite his executive power, the president cannot make treaties or appointments without the Senate’s advice and consent. In this regard, the Senate acts as a limited executive council. Likewise, the president cannot pardon impeachments or violations of state law.
From the Constitution’s inception, some have doubted whether the Vesting Clause grants any power at all. Some have asserted that the “executive Power” merely refers to those specific powers enumerated elsewhere in Article II. Others have argued that the Vesting Clause does no more than designate the title and number of the apex of the executive. To claim more for the Vesting Clause supposedly would make the rest of Article II redundant. There are reasons to reject such claims. First, these arguments shunt aside the eighteenth-century understanding of executive power. The phrase “executive Power” was not an empty catchall encompassing any and all authority granted by a constitution to an executive. The phrase encompassed, at a minimum, control of the execution of laws, foreign affairs, and executive officers.
Second, traditional rules of interpretation require us to take seriously the differences 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 powers apart 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 seeks to avoid redundant readings, it fails on its own terms. Because the rest of Article II makes clear that there would be only one executive styled the “president” (provisions in Article II repeatedly mention a “president” and use the singular pronoun “he”), the title and number theory would render the Executive Vesting Clause 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 Vesting Clause is most often associated with execution of the laws, foreign affairs, and direction of executive officers, some imagine that it grants additional authority. For instance, many believe that the clause supports an executive privilege that enables the president to shield 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 conveys certain “emergency powers” to take extraordinary actions during exigencies, of the sort that Abraham Lincoln took during the Civil War.
The Vesting Clause has played a limited role in constitutional litigation. With some exceptions—including Justice Robert H. Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952)—the Supreme Court has accepted that the clause grants powers beyond those specifically enumerated in Article II. In Myers v. United States (1926), the Court cited the Executive Vesting Clause as the source of removal and supervisory powers over executive officers. Nixon v. Fitzgerald (1982) cited the clause as a source of three powers (law enforcement, foreign affairs, and a supervisory power over the executive branch). In a 2003 case touching upon foreign affairs, the judiciary affirmed that the Vesting Clause grants foreign affairs authority. 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 in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936). In a rather recent case, the Supreme Court repeatedly declared that multilayered removal protections were inconsistent with the grant of executive power, thereby grounding the president’s removal power in the Vesting Clause. See Free Enterprise Fund v. Public Company Accounting Oversight Board (2010). Yet the Court did not disturb the existing scheme of “for cause” removal restrictions that help grant the independent agencies their autonomy.
Indeed, despite the willingness to read the clause as granting power, judicial decisions have consistently limited its reach. Post-Myers, the Supreme Court essentially sanctioned the creation of a fourth branch of government in the form of numerous independent agencies that simultaneously exercise legislative, executive, and judicial powers. The most notable such case, Morrison v. Olson (1988), acknowledged that the Executive Vesting Clause granted the president control over prosecutions even as it upheld the constitutionality of the Independent Counsel Act. The Morrison Court concluded that the good-cause removal restriction protecting Independent Counsels did not “unduly trammel on executive authority.” That framework well describes the Supreme Court’s case law on the Vesting Clause: while the clause grants the president substantive power not found elsewhere in the Constitution, those powers are often subject to congressional regulation and modification.
Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23 (1995)
Steven G. Calabresi & Saikrishna Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541 (1994)
Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992)
HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR (1990)
Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 4 (1994)
H. Jefferson Powell, The Founders and the President’s Authority over Foreign Affairs, 40 WM. & MARY L. REV. 1471 (1999)
Saikrishna B. Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701 (2003)
Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001)
ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS, AND CONSTITUTIONAL POWER (1984)
Myers v. United States, 272 U.S. 52 (1926)
Humphrey's Executor v. United States, 295 U.S. 602 (1935)
United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
United States v. Nixon, 418 U.S. 683 (1974)
Nixon v. Fitzgerald, 457 U.S. 731 (1982)
Morrison v. Olson, 487 U.S. 654 (1988)
Clinton v. Jones, 520 U.S. 681 (1997)
American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003)
Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010)