Interpretation & Debate

The Vesting Clause

Matters of Debate

Common Interpretation

by Saikrishna B. Prakash

James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia School of Law

by Christopher H. Schroeder

Charles S. Murphy Professor of Law and Public Policy Studies at Duke University Law School

Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” At a minimum, this Vesting Clause establishes an executive office to be occupied by an individual. At the Founding, the creation of a separate executive was hardly obvious. The Articles of Confederation created no separate executive; duties that we associate with the executive were handled first by congressional committees and then by “Secretaries” or “Boards” under congressional direction. Nor was it self-evident that one individual would stand at the apex of the executive. Several states had plural executives (executive committees) and the notion of a plural executive had its backers at the Philadelphia Convention.

Few could disagree that the Vesting Clause establishes a unitary executive in the sense that it creates a single executive President. Throughout our Constitution’s history, some politicians, judges, and scholars have argued that this minimal sense exhausts the content of the Clause. Others have argued that the Clause does more and actually grants the President “the executive power.” In recent years, advocates of this latter view have identified their position with the label “Unitary Executive.” But this label is a bit misleading, for we would do well to remember that the idea that the Constitution establishes a unitary executive is perhaps universally shared, at least in the minimalist sense outlined above.

In this disagreement, two issues predominate. First, does the term “executive power” identify a set of powers beyond those expressly identified in the Constitution, but which are nonetheless given to the President by virtue of the Vesting Clause? Vesting Clause minimalists often claim there was no settled meaning to the term at the time of the Founding and that “the executive power of the United States” refers only to those powers elsewhere assigned to the President. The Unitary Executive position is that at the Founding “executive power” referred to a suite of powers, such as the powers to execute the law, appoint officers, communicate with foreign governments, formulate foreign policy, wage war, and the like. The Vesting Clause grants this entire suite to the President, subject to express limitations in the Constitution. The President may not appoint without securing the Senate’s consent, for instance, and Article I, Section 8, Clause 11 provides that the Congress shall declare war, with the implication that the President cannot. 

Second, by “vesting” powers in a singular executive, does the Vesting Clause establish that the President may exercise those powers by himself, without interference by Congress, and, concomitantly, does it give the President the authority to direct and supervise any federal official involved in such matters? Advocates of the Unitary Executive position often assert that the President can exercise his constitutional powers without congressional interference and that he may direct executive officers. For their part, Vesting Clause minimalists tend to claim that Congress, through the exercise of its legislative powers including the Necessary and Proper Clause, can qualify or regulate the President’s exercise of powers that have not been clearly assigned to his sole discretion so long as Congress does not impede the President’s ability to discharge his constitutional duties. 

Notice that neither the two Unitary Executive positions nor the two minimalist positions are necessarily linked to one another. One could conclude that the Vesting Clause minimalists have the better case on the first question while the Unitary Executives have the better view on the second, for example. Yet in practice, people often adopt one pair of related views or the other set.        

These questions matter. In their purest forms the two understandings of the Vesting Clause—the minimalist and the Unitary Executive—imagine quite different allocations of power and institutional arrangements. If the Unitary Executive stance were to prevail, perhaps all of the independent agencies of the federal government, from the Federal Communications Commission to the Federal Reserve, would be unconstitutional because of congressional restrictions placed on the President’s authority to remove members of their commissions or boards. After all, these restrictions would be seen as unduly inhibiting the President’s ability to supervise and control.  But if minimalists have the better reading of the Vesting Clause, what prevents Congress from granting removal protections to the entire bureaucracy, including such officials as the Secretary of State or the Attorney General? So long as it leaves the President the ability to ensure faithful execution of the laws, Congress might be able to radically refashion his relationship to departments long thought of as executive and under his supervision. 

Judicial doctrine on these questions is mixed. The Court has, from time to time, endorsed the idea that the Vesting Clause vests powers independent of the rest of Article II.  In a case involving presidential dismissal of a postmaster, Myers v. United States (1926), the Court claimed that the Vesting Clause granted authority to execute the law and to remove executive officials. In a decision from the late nineteenth century, In re Neagle (1890), the Court upheld the authority of the President to assign a federal marshal to protect a Supreme Court justice who had been threatened by a disgruntled litigant, despite the absence of any statute granting that authority. In United States v. Curtiss-Wright Export Corp. (1936), the Court famously announced that the President was the “sole organ of the nation in its external relations.” In the twenty-first century, the Court observed in American Insurance Ass’n v. Garamendi (2003) that the “historical gloss” on the executive power conferred upon the President the vast share of foreign affairs powers.

Yet in a series of removal cases, the Court has also approved congressional authority to insulate public officials from executive control. In a case involving the Federal Trade Commission, Humphrey’s Executor v. United States (1935), the Court held that Congress could limit the President’s ability to remove a commissioner. Similarly, in Morrison v. Olson (1988) the Court sustained a law that said the executive could remove independent prosecutors for just cause only. The law gave the President sufficient authority to ensure faithful execution, or so the Court held.  And, it should be noted, the Court sometimes avoids resolving questions about the meaning of the Vesting Clause, choosing to rest its decisions on other grounds.

Arguments about the Vesting Clause surface whenever the government takes actions that might not fit squarely within existing understandings of how the Constitution separates powers. Can the President unilaterally terminate a treaty? Can the President resolve international disputes through agreements negotiated by him and then submitted to Congress for implementing legislation as needed, thus operating outside the Treaty Clause? 

It is much more likely that the branches will reach provisional understandings on many of the disputed questions through the normal processes of politics than that the Supreme Court will cleanly and, once and for all, declare one or the other view correct. In part this is because similar results in many cases can be reached through statutory construction or reliance on other constitutional provisions, without reaching difficult Vesting Clause issues.  In part it is because separation of powers questions often rely heavily on historical practices for their resolution. 

The Most Compelling Reading of the Vesting Clause

by Christopher H. Schroeder

Charles S. Murphy Professor of Law and Public Policy Studies at Duke University Law School

The opening sentence of Article II states that “[t]he executive power shall be vested in a President of the United States.” The most natural reading of this Vesting Clause is that it establishes a unitary presidency with the power to execute the laws of the United States. Some would read it more narrowly, simply as a signifier that the office of the Presidency will be held by a single person. There is less difference between these two options than meets the eye. The narrow reading does not alter the overall allocation of presidential authority, because the presidential duty in Article II, Section III, to “take care that the laws be faithfully executed,” should be taken to imply the power to accomplish what is necessary to discharge that duty. What I have called the most natural reading of the constitutional text comports with the widespread Founding-era understanding that the executive officer or officers of government had responsibility for executing the laws.

On the other hand, reading the Clause more expansively to encompass unstated or residual powers—perhaps powers that are insulated from any ability of Congress to regulate via duly enacted laws—would substantially alter the Constitution’s allocation of powers. It would also be inconsistent with the historical and political context of the Founding. Such a reading would give to the President powers akin to the “prerogatives” of British kings of which the Founders were highly suspicious.

To be sure, the experience of the United States under the Articles of Confederation and the individual state constitutions between 1776 and 1787 led to significant dissatisfaction with government dominated by the legislature, and to considerable interest in a federal government with a stronger executive. But “stronger” did not translate to “monarchical.” The antipathy toward monarchy and monarchical prerogatives remained, and in 1787 the political climate likewise remained inhospitable to the idea of an Executive holding substantial unstated, unenumerated, or residual rights. This antipathy was most strongly expressed against potentially oppressive authorities over which the President claimed unilateral sway, the common understanding of prerogative. Justice Jackson’s view from Youngstown Sheet & Tube Co. v. Sawyer (1952) that the President’s powers are at their lowest ebb when they are asserted to be exclusive of legislative regulation comports more nearly with the Founding era mood. The Constitution’s defenders asserted that it established a government of enumerated powers, as well as one that set ambition against ambition. 

What I have called the natural reading of the text is supported by the ratification convention debates. One of the recurring criticisms of the Constitution argued that it assigned powers to the President that would produce a return to monarchy. Opponents seeking to articulate these concerns pointed to a number of features of the Constitution’s provisions to support the claim of monarchical powers, but they never drew attention to the unstated or residual powers supposedly encompassed by the phrase “executive power.” Likewise, the Constitution’s defenders did not feel compelled to demonstrate that any such residual powers were reasonable, even though they did respond to their critics by taking each of the stated powers of the President one-by-one to show each was reasonable and would not produce a bad result. Particularly prominent was Hamilton’s discussion of presidential powers in The Federalist No. 67 and No. 69, in which he reviewed each of the President’s enumerated powers, never mentioning the residual powers supposedly contained within the term “executive power.” Thus neither opponents nor proponents of the Constitution asserted that “executive power” had any larger meaning than that conveyed by the natural reading of the Vesting Clause.

In 1793, after the Constitution was ratified, Hamilton, writing as Pacificus, asserted that the Vesting Clause did have a broader meaning when he defended President Washington’s neutrality declaration. Various public officials, including the opinion for the Supreme Court in Myers v. United States (1926), have subsequently also given voice to it. The Pacificus essay, however, leaned more heavily on other arguments based on specific and stated presidential powers, which were more than sufficient to carry the defense. As for Myers, much of the opinion can be read consistently with the Vesting Clause’s natural reading, because at least some ability to control and remove some executive branch officials is fairly implied as necessary to discharge the President’s take care responsibilities as well as the President’s law execution authority. 

Reasonable people can disagree as to whether that presidential power needs to be unfettered with respect to all executive branch officials. Myers’ apparent holding that it did was the controversial dimension of the decision, and the Supreme Court rather quickly walked this part back, first in Humphrey’s Executor v. United States (1935) and later in Morrison v. Olson (1988), which held that an independent counsel could be protected from removal through a good cause requirement, because that protection did not impermissibly burden the President’s ability to control or supervise the independent counsel.

Both President Richard Nixon and President George W. Bush in his first term provided glimpses into the implications of a very strong reading of the Vesting Clause. President Nixon and his representatives claimed an array of exclusive and preclusive powers. In President Nixon’s case, these included the authority not to spend congressionally allocated funds, the right to decide what presidential communications would be made public, the right to prevent any executive official from disclosing information to Congress, and the right to render legal acts of subordinates that would be illegal absent presidential direction. President Bush’s lawyers argued for similarly broad authorities to ignore acts of Congress regulating presidential actions, relying after 9/11 on the President’s duties as Commander in Chief as well as on the allegedly expansive content of the Vesting Clause.

These presidencies show that giving the Vesting Clause a reading more broad than its natural meaning, and especially finding there what Justice Jackson in Youngstown termed “conclusive and preclusive” powers, would place an enormous repository of authority outside of the system of checks and balances that animates our Constitution. As Jackson noted, because such claims put “at stake . . .  the equilibrium established by our constitutional system,” they must be “scrutinized with caution.” Neither Nixon’s nor Bush’s aggressive assertions of such authorities were vindicated by the Supreme Court. By and large, the decisions of the Supreme Court have adhered to the Jackson approach, declining to read more into the Vesting Clause than the text’s natural reading, the Constitution’s overall structure, and the Clause’s historical and political context justify.   

The Significance of “Executive Power”

by Saikrishna B. Prakash

James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia School of Law

Article II’s modest list of specific powers might lead one to suppose that the President was meant to have but few authorities. He can pardon people, is Commander in Chief, and, with the Senate’s consent, can appoint to office. Though he has an express duty to ensure faithful execution, one could read the Constitution as never granting him any authority to execute the law in the first instance. Moreover, he seems to have but a slender connection to foreign affairs, with a duty to receive ambassadors and a power, subject to a substantial Senate check, of making treaties. The familiar, powerful Presidency of today may seem surprisingly unconnected to the Constitution’s actual text.

Yet from the Constitution’s inception, the Presidency has been a powerful institution. Early Presidents, from Washington on, assumed a host of powers—over law execution, foreign policy, and executive officers. In particular, Washington and his successors controlled correspondence with foreign countries, directed American ambassadors, ousted foreign ambassadors, executed federal laws, directed prosecutors, and regularly commanded and removed executive officers. No statute authorized these actions. Rather their common foundation arose from the Constitution, which granted the President “the executive Power of the United States.” Presidents continue to exercise such powers, all without statutory warrant.

Grants of “executive power” were familiar, primarily because most extant state constitutions expressly granted such authority in contexts where it was clear that the provisions granted a suite of powers. The Constitution replicated that system. As Alexander Hamilton put it, the Constitution’s “general doctrine” is that the “Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the” Constitution.

If that is the “doctrine” of the Constitution, what are we to make of the particularized grants? Hamilton again had the answer: “The enumeration [of particular authorities] ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts of the constitution and to the principles of free government.” This structure—a general grant, followed by clarification and limitation—was hardly unusual. As James Madison put, “[n]othing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” Article II followed that natural structure.

Two vital constraints hem in the Vesting Clause’s rule that the President enjoys those powers traditionally vested with chief executives. First, the Vesting Clause never grants to the President the powers granted elsewhere to Congress. Hence our President cannot regulate foreign commerce or declare war. Stripping away these traditional executive powers helps ensure that the Presidency is not too formidable. Second, specific constitutional checks restrain executive authority. Despite the grant of executive power, the President cannot appoint or make treaties without the Senate’s advice and consent. Nor can he pardon impeachment convictions or violations of state law.

Executive power minimalists make some respectable arguments. Yet none of them can overcome text, history, and longstanding practice. First, their claims disregard the eighteenth-century meaning of executive power. “Executive Power” was not an empty phrase. Rather it encompassed control of law execution, foreign affairs, and executive officers. Second, rules of interpretation oblige us to heed the differences across the first three Articles. Article I, Section 1 (“All legislative Powers herein granted shall be vested in a Congress . . . .”) evidently means to vest no powers separate from those specifically enumerated in 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 has the structure of its Article III counterpart, in contrast to the Article I Clause. Third, although minimalists sometimes say they wish to avoid redundancies, their theory generates that very problem. The rest of Article II makes abundantly clear that there would be only one executive, styled the “President” (Article II repeatedly mention a “President” and use the pronoun “he”). Hence minimalists would have us read the Vesting Clause as if it served no purpose.

From time to time, the Supreme Court has embraced the idea that the Vesting Clause grants powers beyond those specifically enumerated in Article II. In Myers v. United States (1926), the Court cited the Clause as the source of removal and supervisory powers over executive officers.  Nixon v. Fitzgerald (1982) unambiguously 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, American Insurance Ass’n v. Garamendi, the judiciary affirmed that the Vesting Clause grants foreign-affairs authority. In a rather recent case, Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010), the Supreme Court repeatedly declared that certain removal protections for commissioners were inconsistent with the grant of executive power, thereby grounding the President’s removal power in the Vesting Clause.

Though the Court has read the Clause as granting power, its decisions also have 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 Vesting Clause granted the President control over prosecutions. Yet the Court concluded that the good-cause removal restriction imposed by statute (the executive could not remove at his discretion) did not “unduly trammel on executive authority.” That framework encapsulates the Supreme Court’s case law on the Vesting Clause: while the Clause grants the President substantive powers not found elsewhere in the Constitution, Congress may regulate, to some uncertain extent, the exercise of those powers.

Matters of Debate