The Executive Vesting Clause

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

—John C. Yoo

Introduction

The Article II Vesting Clause grants the President “executive power.” Traditionally, this encompassed law execution and a host of powers often associated with law execution such as authority over foreign affairs and the appointment, direction, and removal of executive officers.¹ Crucially, the otherwise broad grant of “executive power” is qualified by other clauses in Article II and by significant grants to Congress in Article I. The result is a Constitution that grants rather important executive powers to Congress, such as declaring war, and qualifies several other crucial ones like appointments and treaties.

History Before 1787

Before American independence, the terms “executive power” and “executive powers” commonly referred to a suite of powers deemed executive by virtue of their long association with executives. European writers like Baron de Montesquieu and John Locke spoke of the “executive power” as consisting of a related set of authorities. In 1778, several towns in Essex County, Massachusetts, produced a commentary on the proposed Massachusetts constitution. This document, known as The Essex Result, described two types of executive power: internal executive power, which comprehended territorial defense and law execution, and external executive power, which encompassed war, treaties, and foreign relations.² It was quite common for Americans to speak of “executive power” as a familiar and known concept with no need of any explanation or specification.

Several state constitutions granted specific powers to their chief executives, whether singular or plural, and also granted “other executive powers.” In Delaware, the “president or chief magistrate . . . may exercise all the other executive powers of government limited and restrained as by this constitution is mentioned, and according to the laws of the State.”³ In Maryland, “the Governor . . . may alone exercise all other the executive powers of government.”⁴ Similar language was used in North Carolina.⁵ These constitutions thereby adopted the practice of using a catchall term rather than specifying each strand of executive power.

Under the Articles of Confederation, the Continental Congress exercised the executive power. The legislature appointed and controlled various executive officers, including the secretaries of departments. Congress could “appoint such other committees and civil officers as may be necessary for managing the general affairs of the united states under their direction.”⁶ However, delegates to Congress were not “capable of holding any [appointed] office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind.”⁷

However, law execution under the direction of a distracted, plural executive was hardly vigorous. Congress likewise proved a poor steward of foreign affairs. American diplomats complained that Congress could not act with the requisite speed or secrecy.

The Constitutional Convention

The concept of the Vesting Clause emerged early during the Convention. The Virginia Plan, proposed by Edmund Randolph, resolved “that a National Executive be instituted” and explained “that besides a general authority to execute the National laws, [the National Executive] ought to enjoy the Executive rights vested in Congress by the Confederation.”⁸ In other words, whatever “executive” powers were vested in the Confederation Congress would belong to the National Executive; there was no reference to some broader concept of “the executive power.”

The Convention debated this resolution on June 1.⁹ James Wilson of Pennsylvania “moved that the Executive consist of a single person.”¹⁰ Elbridge Gerry of Massachusetts favored “annexing a Council to the Executive.”¹¹ Edmund Randolph “opposed a unity in the Executive,” which he “regarded . . . as the foetus of monarchy,” and argued that having “more than one” Executive would “support its independence.”¹² Wilson responded “that Unity in the Executive instead of being the fetus of Monarchy would be the best safeguard against tyranny.”¹³ James Madison of Virginia thought it important to “fix the extent of the Executive authority” before deciding “between a unity and a plurality in the Executive.”¹⁴ Consideration of Wilson’s motion was postponed.¹⁵

On June 4, the Convention resumed debate about whether there would be a single executive or multiple executives.¹⁶ Wilson argued that the “tranquility not less than the vigor of the Govt. . . . would be favored by” a single executive.¹⁷ His motion passed by a vote of 7 to 3.¹⁸ On June 22, the delegates considered a proposal specifying that the “national Executive” would “consist of a Single Person to be chosen by the National Legislature for the term of Seven years with power to carry into execution the National Laws.”¹⁹ Again, there was still no reference to “the executive power.” Instead, the President could execute “the National Laws.” This text was approved unanimously.²⁰

The first mention of “the executive power” in a written proposal appeared in a Committee of Detail draft in Wilson’s handwriting.²¹ It provided that “[t]he Executive Power of the United States shall be vested in a single Person. His Stile shall be, ‘The President of the United States of America;’ and his Title shall be, ‘His Excellency.’”²² This reference to some body of executive powers was a significant change. Professor Michael W. McConnell has observed that the Committee of Detail’s “reformation of the executive power was . . . audacious.”²³ The Convention debated this provision on August 24, and the “question for vesting the power in a single person . . . was agreed to” unanimously.²⁴ There was no debate on what these powers were.

Three separate clauses referred to the Committee of Style provided that “[t]he Executive power of the United States shall be vested in a single person. His stile shall be, ‘The President of the United States of America;’ and his title shall be, ‘His Excellency.’”²⁵ This text seems to emphasize who has the power rather than what powers that person has,²⁶ and those powers were limited to the “Executive power of the United States.” Those powers certainly included the executive authorities enumerated in the Constitution, but they could also extend to the broader category of executive powers understood by European jurists.

The Committee of Style condensed these three clauses into a single sentence: “The executive power shall be vested in a president of the United States of America.”²⁷ Scholars debate about whether this revision was stylistic or substantive.²⁸ The emphasis shifted from who had the power to what powers were vested in the President.²⁹ Moreover, the executive power was no longer limited to that of the United States. Now, the text could more easily extend to the British model of executive power.³⁰ This text was novel. Professor William Michael Treanor has observed that “[n]one of the state constitutions” or other plans proposed to the Convention “had that framework” adopted by the Committee of Style.³¹ The Convention made no further changes in the Executive Vesting Clause.

The Ratification Debates

Many Anti-Federalists warned that the presidency would be kingly in fact if not in name. At the Virginia ratification convention, George Mason warned that the presidency would be “an elective monarchy.”³² The resemblance was obvious. The presidency was powerful, and some European monarchies were elective.

At times, Federalists downplayed the office’s powers; at other times, they celebrated the creation of a powerful executive. James Wilson captured the spirit of the reform during the Constitutional Convention when he remarked that a “single magistrate” would supply the “most energy, dispatch, and responsibility” to the execution of the laws.³³ Alexander Hamilton echoed this view in Federalist No. 70: “[A]ll men of sense will agree in the necessity of an energetic Executive.” Some Federalists also spoke of the President’s significant role in foreign affairs. They discussed the Senate’s check on treaty-making as an exception to the grant of executive power. Finally, Hamilton wrote in Federalist No. 72 of an array of administrative authorities granted to the President that included conducting foreign negotiations, expending funds pursuant to appropriations, and overseeing the military.

Early Practice

In 1789, the First Congress considered legislation that would have restricted the President’s ability to remove certain executive branch officers. The Constitution spells out the process by which the President can appoint officers, but Article II is silent about whether the President also has the power to remove those officers. Members of Congress vigorously debated this issue. Some argued that Congress can provide protection for the offices it creates. Others contended that such restrictions violated the President’s “executive power,” which includes the removal power.

During the debate, Representative Fisher Ames of Massachusetts acknowledged that “the Constitution is not explicit on the point” but added that it “strongly infers that the [removal] power is in the President alone.”³⁴ He cited Article II, which “declared that the executive power shall be vested in the President.”³⁵ The U.S. Supreme Court has cited the so-called Decision of 1789 as the basis for the President’s removal power.³⁶ Scholars continue to debate about how this episode should inform the original meaning of the Executive Vesting Clause.³⁷

Other early practices shed light on the scope of the President’s powers. In 1793, President George Washington issued the neutrality proclamation, under which the United States would remain neutral in the war between Great Britain and France. Yet nothing in the Constitution expressly empowered the President to issue such a proclamation. Hamilton, writing under the pseudonym Pacificus, defended the proclamation, citing the Executive Vesting Clause: “The general doctrine then of our constitution 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 instrument.”³⁸ Madison, writing under the pseudonym Helvidius, countered that President Washington lacked the power to issue the proclamation and charged that Hamilton’s views, like those of John Locke, were “warped by a regard to the particular government of England, to which [Locke] owed allegiance.”³⁹ Washington also relied on Article II to ask for the recall of French emissary Citizen Genet.

Congress also refused to correspond with foreign governments because members concluded that foreign communications were left to the President by virtue of the executive power, even though that power is not expressly enumerated. The first President also directed federal law execution and executives of various sorts—soldiers, customs officials, U.S. attorneys, and departmental secretaries.⁴⁰

Judicial Precedent

The Executive Vesting Clause has played a limited role in constitutional litigation. As a general matter, the Supreme Court has accepted that the Clause grants powers beyond those specifically enumerated in Article II. Myers v. United States (1926) cited the Executive Vesting Clause as the source of the President’s removal and supervisory powers over executive officers.⁴¹ 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.⁴²

American Insurance Association v. Garamendi (2003) affirmed that the Vesting Clause grants the President foreign affairs authority.⁴³ This case marked a departure from prior case law, which had grounded the executive’s foreign-affairs powers in necessity and sovereignty.⁴⁴ Yet Zivotofsky v. Kerry (2015) conspicuously eschewed reliance on the Vesting Clause in concluding that the President had a power to recognize foreign nations and governments.⁴⁵

Free Enterprise Fund v. Public Accounting Oversight Board (2010) declared that Congress could not create multiple layers of removal protection.⁴⁶ This structure was inconsistent with the President’s removal power, which is grounded in the Vesting Clause.⁴⁷ Other removal cases, including Seila Law v. CFPB (2020), also have relied on the Vesting Clause.⁴⁸

However, other judicial decisions have limited the clause’s potential reach. After 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. Humphrey’s Executor v. United States (1935) held that the President could not remove at will a member of the Federal Trade Commission.⁴⁹ Five decades later, Morrison v. Olson (1988) acknowledged that the Vesting Clause granted the President control of prosecutions.⁵⁰ Yet at the same time, the Court upheld the constitutionality of independent counsels.⁵¹ These special prosecutors could be removed only for good cause. The Court concluded that this removal restriction protecting independent counsels did not “unduly trammel on executive authority.”⁵²

That framework well describes the Supreme Court’s case law on the Vesting Clause: The clause grants the President substantive power not found elsewhere in the Constitution, but those powers are often subject to congressional regulation and modification. Those cases are best understood as grounded on the Court’s belief that there is some uncertain measure of congressional power to tinker with or modify the grant of executive power. This framework is further illustrated by Justice Robert H. Jackson’s influential concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952),⁵³ in which he narrowly construed the President’s executive powers when they were not supported by congressional legislation: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”⁵⁴

Open Questions

• How should we understand the alterations made in the Executive Vesting Clause by the Committee of Style?⁵⁵ Should originalists focus only on the final, ratified text rather than earlier, unadopted drafts?
• How should the Supreme Court resolve the long-standing debate about what powers the Vesting Clause grants the executive? Some have long asserted that the Vesting Clause vests nothing of substance, with presidential powers granted later in Article II. Others contend that the clause extends to law execution.⁵⁶ Still others say that “executive power” referred to a set of powers, including “the implementation of legal norms created by some other authority,” but did not encompass any authority over foreign affairs.⁵⁷
• Does the Executive Vesting Clause support an executive privilege that enables the President to shield executive communications from Congress and the judiciary?⁵⁸ Does the clause grant the President certain immunities in court, such as immunity from suits challenging official actions? Does the clause convey certain “emergency powers” to take extraordinary actions during exigencies of the sort that Abraham Lincoln took at the outset of the Civil War?

1. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541 (1994); Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001). ↩︎
2. The Essex Result (Apr. 29, 1778), in 1 The Founders’ Constitution ch 4, doc. 8 (Philip B. Kurland & Ralph Lerner eds., 1987), https://perma.cc/F5JG-DTXC. ↩︎
3. Del. Const. of 1776, art. VII. ↩︎
4. Md. Const. of 1776, art. XXXIII. ↩︎
5. N.C. Const. of 1776, art. XIX. ↩︎
6. Articles of Confederation, art. IX, § 5. ↩︎
7. Id., art. V, § 2; Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part IV: The “Office . . . Under the United States” Drafting Convention, 62 S. Tex. L. Rev. 455, 469–71 (2023). ↩︎
8. 1 Farrand’s 20, 21. ↩︎
9. Id. at 64. ↩︎
10. Id. at 65. ↩︎
11. Id. at 66. ↩︎
12. 1 Farrand’s 66. ↩︎
13. Id. ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. Id. at 96. ↩︎
17. Id. ↩︎
18. Id. at 97. ↩︎
19. Id. at 230; 2 Farrand’s 22. ↩︎
20. 2 Farrand’s 22. ↩︎
21. Id. at 163. ↩︎
22. Id. at 171. ↩︎
23. Michael W. McConnell, James Wilson’s Contributions to the Construction of Article II, 17 Geo. J.L. & Pub. Pol’y 23, 40 (2019). ↩︎
24. 2 Farrand’s 401. ↩︎
25. Id. at 565, 572. ↩︎
26. William Michael Treanor, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, 120 Mich. L. Rev. 1, 33 (2021). ↩︎
27. 2 Farrand’s 597. ↩︎
28. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 576 (1994); Treanor, supra at 61. ↩︎
29. Treanor, supra at 61. ↩︎
30. Id. at 62. ↩︎
31. Id. at 60. ↩︎
32. 3 Elliot’s 484. ↩︎
33. 1 Farrand’s 65. ↩︎
34. 4 Elliot’s 395. ↩︎
35. Id. ↩︎
36. Seila Law LLC v. CFPB, 591 U.S. 197, 204 (2020) (citing Myers v. United States, 272 U.S. 52, 142 (1926)). ↩︎
37. Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023); Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023); Aditya Bamzai & Saikrishna Bangalore Prakash, How to Think About the Removal Power, 110 Va. L. Rev. Online 159 (2024). ↩︎
38. Pacificus No. 1 (June 29, 1783), https://perma.cc/27YM-DJE8. ↩︎
39. Helvedius No. 1 (Aug. 24, 1793), https://perma.cc/3XQM-98K4; Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Rsrv. L. Rev. 1451, 1507 (1997). ↩︎
40. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001). ↩︎
41. Myers, 272 U.S. at 138. ↩︎
42. 457 U.S. 731, 753 (1982). ↩︎
43. 539 U.S. 396 (2003). ↩︎
44. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320–21 (1936). ↩︎
45. 576 U.S. 1 (2015). ↩︎
46. 561 U.S. 477 (2010). ↩︎
47. Id. at 492. ↩︎
48. Seila Law, 591 U.S. 197. ↩︎
49. 295 U.S. 602 (1935). ↩︎
50. 487 U.S. 655 (1988). ↩︎
51. Id. at 690 n.29. ↩︎
52. Id. at 654. ↩︎
53. 343 U.S. 579 (1952) (Jackson, J., concurring). ↩︎
54. Id. at 637–38 (Jackson, J., concurring). ↩︎
55. Treanor, supra at 60. ↩︎
56. Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004). ↩︎
57. Julian D. Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019). ↩︎
58. Trump v. Vance, 591 U.S. 786, 815 (2020) (Thomas, J., dissenting). ↩︎