Vesting

85 Pages Posted: 26 Feb 2021 Last revised: 30 Nov 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: The president possesses executive powers exclusive from congressional limitations (i.e., they are indefeasible). Many originalists assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.
This Article offers a close textual reading of the word “vesting” and an examination of its eighteenth-century usage and 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 word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. Its ordinary meaning was most likely a simple grant of powers without signifying the impermissibility of legislative conditions, such as a good-cause requirement for removals.
Other words used in the Constitution or by the framers to convey exclusivity or indefeasibility (e.g., “all,” “exclusive,” “sole,” “alone,” or “indefeasible”) are missing from the Executive Vesting Clause.
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.” However, the era’s available dictionaries from 1640 to 1846 defined “vest” without reference to exclusive or indefeasible powers, but instead in terms of individual property rights (usually limited to landed property, not offices or powers). Other legal documents and a database of founders’ papers indicate a usage ranging from “fully vested” to “partly vested,” so that the “vesting” by itself would signify less completeness.
If the Executive Vesting Clause did not convey indefeasibility, it is unclear what remains of the unitary theory’s originalist basis. On the other hand, the “all” in the Legislative Vesting Clause may be more legally meaningful for non-delegation.

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

JEL Classification: K23, N41

Suggested Citation

Shugerman, Jed Handelsman, Vesting (February 25, 2021). Stanford Law Review, Vol. 74, 2022, 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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