The Vesting Clause

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.   

Article II’s short list of specific powers might cause one to imagine that the President was meant to have but few authorities. He can pardon, is Commander in Chief, and, with the Senate’s consent, can appoint to office. Further, he seems to have a slender tie to foreign affairs, with a duty to receive ambassadors and a power, subject to a Senate check, to make treaties.  Finally, though he has a duty to ensure faithful execution, one could read the Constitution as never granting authority to execute the law in the first instance.  Any power to execute the laws must come, if at all, from Congress’s laws.  The familiar Presidency may seem surprisingly unconnected to the Constitution’s text.

This crabbed view of the Constitution’s Presidency bears little likeness to enduring constitutional understandings and practices.  From the Constitution’s earliest days, the Presidency has been a powerful institution, exercising authorities justifiable only by reference to the Vesting Clause. Presidents have assumed a host of powers over law execution, foreign policy, and executive officers. They have controlled correspondence with foreign nations, directed American ambassadors, and generally superintended the execution of laws.  No statute authorized these actions. Rather they were grounded on the grant of “the executive Power.” Presidents continue to exercise such powers, mostly without statutory warrant.

Crucially, Presidents also controlled the bureaucracy.  Again, despite the lack of statutory grants, they ordered attorneys to prosecute, directed other executive officials, including Treasury officials, and fired numerous officers.  Presidents regarded administrative officers as their tools.  As George Washington put it, “[t]he impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust.”

Grants of “executive power” were familiar, primarily because many early state constitutions clearly used such provisions to convey an array 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.  Madison said much the same in the first Congress when he endorsed an executive power to remove: “I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws.”

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 this natural and familiar structure.  In the first Congress, Madison endorsed this precise view of Article II. 

Reading the Vesting Clause as if granted nothing and therefore granted no removal authority, would arrest and shackle the presidency.  As John Adams said:  “This [removal] Power I hold to be a Sacred Part of the Constitution . . . .  If Executive officers, hold their offices independent of the [President] the Executive Authority would be a Nose of Wax.”  Absent a presidential removal power, the officers would enjoy the executive power, not the President.

Four vital constraints hem in the Vesting Clause’s grant of executive power. First, the Vesting Clause never cedes 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 checks restrain executive authority. Despite the grant of executive power, the President cannot appoint or make treaties without the Senate’s consent. Nor can he pardon impeachments or violations of state law.  Third, while Congress has considerable legislative powers, the presidency has none.  Finally, the President must honor judicial judgments, a duty immanent in the separation of judicial power from executive power.  The grant of executive power does not make the president an autocrat, by any means. 

Vesting Clause minimalists make some respectable arguments. Yet they cannot 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, we ought 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.

Tellingly, the Court has repeatedly embraced the idea that the Vesting Clause grants powers beyond those specifically enumerated in Article II. Myers v. United States (1926) cited the Clause as the source of removal and supervisory powers over executive officers.  U.S. v. ex rel Knauff v. Shaugnessy (1950) declared that the right to exclude aliens was “inherent in the executive power to control the foreign affairs of the nation. ” In, Nixon v. Fitzgerald (1982), a case about presidential immunity, the Court said the Clause conveyed three powers—law enforcement, foreign affairs, and a supervisory power over the executive branch.  A 2003 case touching upon foreign affairs, American Insurance Ass’n v. Garamendi, affirmed that the Vesting Clause grants foreign-affairs authority. In more recent cases, including Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010), Seila Law v. Consumer Financial Protection Bureau (2020), and Collins v. Yellen (2021), the Supreme Court declared that certain removal protections were inconsistent with the grant of executive power, thereby closely tethering the President’s removal power to the Vesting Clause.

To say that the President has powers flowing from the Vesting Clause is not to deny that other institutions could (conceivably) have authority to limit, check, or abrogate those subsidiary powers.  Yet there is no such grant of authority to Congress, or to the courts, to limit, check, or abrogate the executive powers that the Constitution confers.  Some state constitutions explicitly made executive powers subject to legislation, thereby inviting legislative regulation of executive powers.  Our constitution does that with respect to inferior officers, permitting Congress to derogate from the default rule of presidential nomination, and, with the Senate’s consent, appointment.  But there is no comparable congressional authority over pardons, vetoes, or the vesting clause.  As Madison put it “inasmuch as the power of removal is of an executive nature, and not affected by any constitutional exception, it is beyond the reach of the legislative body.”  In other words, there is no authority to make exceptions or qualifications concerning the executive power of removal.  He could have said the same about making treaties, proposing bills, and appointments.  Congress cannot check or abrogate those powers.

Some demur and cite the Necessary and Proper Clause.  But that Clause gives authority to carry into execution federal powers, not to obstruct them.  The Clause does not authorize Congress to treat Article II (or Article III) as establishing a series of default rules.  The Clause does not authorize intrusions into the pardon power, cf. United States v. Klein (1871) or the appointments power, Buckley v. Valeo (1976).  The Clause likewise does not sanction intrusions into the executive power, over removals or otherwise.