Interactive Constitution Essay: Article II, Section 1—Vesting Clause

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.