Martin S. Flaherty

Executive Power Essentialism and Foreign Affairs

The so-called Vesting Clause of Article II of the Constitution, which provides that The executive Power shall be vested in a President of the United States of America, stands in apparent contrast with the Article I Vesting Clause, which provides that All legislative Powers herein granted shall be vested in a Congress of the United States. . . . . This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President an array of residual powers, especially foreign affairs powers, that are not specified in the remainder of Article II. This argument, which we call the Vesting Clause Thesis, was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washingtons 1793 Neutrality Proclamation. In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argument in support of the Bush Administrations authority to use military force against Iraq had Congress not expressly granted such authority. Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. Professor John Yoo has invoked the Thesis in a number of recent articles as support for a variety of alleged presidential foreign affairs powers. The Thesis also has received recent support from Professor Phillip Trimble, and its historical account of executive foreign affairs authority is similar to the account developed in a thoughtful recent book by Professor H. Jefferson Powell. This Article critiques the Vesting Clause Thesis on both textual and historical grounds. As for text, the difference in wording between the Article I and Article II Vesting Clauses can be explained on a number of other plausible grounds and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. As for history, the narrative that is offered by proponents of the Vesting Clause Thesis has two central features. First, it is a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrative relies on what could be called executive power essentialism - the proposition that the Founders had in mind, and intended the Constitution to reflect, a conception of what is naturally or essentially within executive power. We argue that this historical narrative is wrong on both counts. Among other things, the narrative fails to take account of complexity within eighteenth century political theory, the experience of state constitutionalism before 1787, and the self-conscious rejection by the Founders of the British model of government. The narrative also understates the degree to which the constitutional Founders were functionalists, willing to deviate from pure political theory and essentialist categories in order to design an effective government.