"Unitary executive" notion
I re-read Article II and I couldn't find it. It apparently originated in the 18th century equivalent of a tweet by Alexander Hamilton
[easier to read at the link]
...A leading scholarly view—shared by at least one current member of the Supreme Court 5 See id. at 2097–99 (Thomas, J., concurring in the judgment in part and dissenting in part) (“Founding-era evidence reveals that the ‘executive Power’ included the foreign affairs powers of a sovereign State. . . . This view of executive power was widespread at the time of the framing of the Constitution.”). and asserted with increasing persistence by the executive branch itself 6 See, e.g., Memorandum from Caroline D. Krass, Principal Assistant Att’y Gen., Office of Legal Counsel to Att’y Gen., Authority to Use Military Force in Libya, 2011 WL (OLC) 1459998, at *5–6 (Apr. 1, 2011) [hereinafter Office of Legal Counsel Libya Memorandum] (arguing that the President has “independent authority” deriving from the President’s “‘unique responsibility,’ as Commander in Chief and Chief Executive, for ‘foreign and military affairs,’ as well as national security” (emphasis added) (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993))). The Obama Administration further argued that under the “historical gloss” on the executive power vested in Article II, the “President bears the ‘vast share of responsibility for the conduct of our foreign relations’” and accordingly holds “independent authority in the areas of foreign policy and national security.” Id. at *7 (quoting Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414, 429 (2003)). In Zivotofsky, the Administration grounded the President’s recognition power in the “assignment of the bulk of foreign-affairs powers to the President” and asserted that “Article II provides that ‘[t]he executive Power shall be vested in a President of the United States of America.’” Brief for the Respondent at 16, Zivotofsky, 135 S. Ct. 2076 (No. 13-628), 2014 WL 4726506 (alteration in original) (emphasis added) (quoting U.S. Const. art. II, § 1, cl. 1); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring) (“The Solicitor General seeks the power of seizure in [the Article II Executive Power Clause]. Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: ‘In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.’”); Brief for the Petitioner at 4, Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (No. 16-1436), 2017 WL 3475820 (“‘The exclusion of aliens is a fundamental act of sovereignty’ that both is an aspect of the ‘legislative power’ and also ‘is inherent in the executive power to control the foreign affairs of the nation.’” (emphasis added) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950))). —is that cases like these often turn on the President’s constitutional possession of “the executive power.” Usually called the Vesting Clause Thesis, this view is said to date to a post-ratification pamphlet written by Alexander Hamilton. 7 See Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39 (Harold C. Syrett ed., digital ed. 2011) (“The enumeration [of specific presidential authorities later in Article II] ought rather therefore to be considered as intended . . . to specify and regulate the principal articles implied in the definition of Executive Power [in the Executive Power Clause]; leaving the rest to flow from the general grant of that power . . . .”). It rests on a simple claim about the original understanding of the Constitution. Specifically: “[T]he executive power” was a term of art for a particular bundle of substantive powers held by the British Crown. In the same way that bestowing agency, guardianship, or bailment powers would convey a well-understood package of powers to an agent, guardian, or bailee, the vesting of “executive power” is said to have conveyed a bundle of authorities usually associated with kingship. 8 See Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 561 n.69 (1994) (“‘[T]he executive Power,’ . . . is probably not so much a type of power as it is a grab bag of many specifically enumerated powers, all of which we think of as belonging to the Executive . . . .”). The standard title for this claim is unhelpful. The first sentence of Article II is definitely a “clause” that “vests” something. The question is what was vested. In the body of this Article, I will refer to the dominant view as the “Royal Residuum” Thesis, to differentiate it from other possible readings of the Executive Power Clause. From that starting point, the Vesting Clause Thesis derives the following rule: The constitutional President was understood to possess the same powers and privileges as the eighteenth-century British Crown, except when specifically limited by other provisions of the Constitution. 9 See infra notes 40–45 and accompanying text (discussing the Vesting Clause Thesis in greater detail). In its strongest form—which suggests that any....
columbialawreview.org
google.com
tends to be skeptical of the Vesting Clause Thesis.
the Vesting Clause Thesis |
