Executive Vesting Clause: Early Doctrine

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Hamilton’s defense of President Washington’s issuance of a neutrality proclamation upon the outbreak of war between France and Great Britain contains not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II.1 Hamilton wrote: “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the Executive Power shall be vested in a President of the United States of America.’ The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.”

“The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ In that which grants the executive power, the expressions are, ‘The executive power shall be vested in a President of the United States.’ The enumeration ought therefore to be considered, as intended merely to specify 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 with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then 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.” 2

Madison’s reply to Hamilton, in five closely reasoned articles,3 was almost exclusively directed to Hamilton’s development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison’s principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation’s neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. “Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.” 4 The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III.5

The Practice in the Presidential Office

However contested the theory of expansive presidential powers, the practice in fact has been one of expansion of those powers, an expansion that a number of “weak” Presidents and the temporary ascendancy of Congress in the wake of the Civil War has not stemmed. Perhaps the point of no return in this area was reached in 1801 when the Jefferson-Madison “strict constructionists” came to power and, instead of diminishing executive power and federal power in general, acted rather to enlarge both, notably by the latitudinarian construction of implied federal powers to justify the Louisiana Purchase.6 After a brief lapse into Cabinet government, the executive in the hands of Andrew Jackson stamped upon the presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, “the oldest political institution of the race, the elective Kingship.” 7 Although the modern theory of presidential power was conceived primarily by Alexander Hamilton, the modern conception of the presidential office was the contribution primarily of Andrew Jackson.8

Footnotes

1

32 Writings of George Washington 430 (J. Fitzpatrick ed., 1939). See C. Thomas, American Neutrality in 1793: A Study in Cabinet Government (1931).

2

7 Works of Alexander Hamilton 76, 80–81 (J. C. Hamilton ed., 1851).

3

1 Letters and Other Writings of James Madison 611-654 (1865).

4

Id. at 621. In the congressional debates on the President’s power to remove executive officeholders, cf. C. Thach, The Creation of the Presidency 1775–1789 ch. 6 (1923), Madison had urged contentions quite similar to Hamilton’s, finding in the first section of Article II and in the obligation to execute the laws a vesting of executive powers sufficient to contain the power solely on his behalf to remove subordinates. 1 Annals of Cong. 496–497. Madison’s language here was to be heavily relied on by Chief Justice Taft on this point in Myers v. United States, 272 U.S. 52, 115–126 (1926), but compare, Corwin, The President’s Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law 1467, 1474–1483, 1485–1486 (1938).

5

Compare Calabresi & Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992), with Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994), and responses by Calabresi, Rhodes and Froomkin, id. at 1377, 1406, 1420.

6

For the debates on the constitutionality of the Purchase, see E. Brown, The Constitutional History of the Louisiana Purchase, 1803–1812 (1920). The differences and similarities between the Jeffersonians and the Federalists can be seen by comparing L. White, The Jeffersonians: A Study in Administrative History 1801–1829 (1951), with L. White, The Federalists: A Study in Administrative History (1948). That the responsibilities of office did not turn the Jeffersonians into Hamiltonians may be gleaned from Madison’s veto of an internal improvements bill. 2 Messages and Papers of the Presidents 569 (J. Richardson comp., 1897).

7

H. Ford, The Rise and Growth of American Politics 293 (1898).

8

E. Corwin, The President: Office and Powers 1787–1957, ch. 1 (4th ed. 1957).