'Vesting': Text, Context, and Separation-of-Powers Problems

57 Pages Posted: 26 Feb 2021 Last revised: 12 May 2021

Date Written: February 25, 2021

Abstract

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible). Many originalists generally tend to assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.

However, unitary judges and scholars have not provided historical evidence that “vest” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.

In the first survey of the word “vest” in over fifty of the era’s available dictionaries from 1640 to 1846 (33 before 1787, 18 after 1787), this Article finds that they generally defined “vest” in terms of individual property rights (usually landed property). Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and none referred to exclusive or indefeasible powers.

Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. The word “vesting” first appeared in the Convention in the Virginia Plan, in a context of relatively weak anti-unitary executive power. A method of “intratextualism” and the canon of expressio unius offers clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.

This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity) and for separation-of-powers doctrine more broadly, in terms of formalism vs. functionalism. If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Myers, Free Enterprise, Seila Law, and indefeasible removal powers.

Keywords: Unitary executive, vesting, administrative law, constitutional law, originalism, textualism, presidential power

JEL Classification: K23, N41

Suggested Citation

Shugerman, Jed Handelsman, 'Vesting': Text, Context, and Separation-of-Powers Problems (February 25, 2021). Stanford Law Review, Vol. 74, 2021, Fordham Law Legal Studies Research Paper No. 3793213, Available at SSRN: https://ssrn.com/abstract=3793213 or http://dx.doi.org/10.2139/ssrn.3793213

Jed Handelsman Shugerman (Contact Author)

Fordham Law School ( email )

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