Fordham University School of Law Fordham Law Faculty Colloquium Papers Year Paper Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis Curtis A. Bradley∗ Martin S. Flaherty† ∗University of Virginia †Fordham University School of Law This content in this repository is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://lsr.nellco.org/fordham/flfc/papers/3 Copyright c 2003. Posted with permission of the author. Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis Curtis A. Bradley and Martin S. Flaherty Abstract The so-called “Vesting Clause” of Article II of the Constitution, which pro- vides 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 not specified in the remainder of Article II. This argument, which we call the “Vesting Clause Thesis,” was famously advanced by Alexander Hamil- ton in his first Pacificus essay defending President Washington’s 1793 Neutrality Proclamation. In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argu- ment in support of the Bush Administration’s authority to use military force against Iraq had not Congress expressly granted such authority. And Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. The Thesis also has received recent support from Professor Phillip Trimble, and qualified support from Professor H. Jefferson Powell. This Article critiques the Vesting Clause Thesis on both textual and histori- cal 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 cen- tral features. First, it presents 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 “ex- ecutive 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. 8/28/03 Draft Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis Curtis A. Bradley * and Martin S. Flaherty ** I. Introduction II. Textual Uncertainty III. Theory and History Prior to the Federal Convention A. Seventeenth and Eighteenth Century Political Theory B. State Constitutional Experience C. Lessons from the Continental Congress IV. The Constitutional Founding A. The Federal Convention B. The Federalist Papers C. State Ratification Debates V. The Wa shington Administration A. The Senate’s Role in Treatymaking B. The Removal Debate C. Reception and Recall of Genet D. The Pacificus-Helvidius Debate VI. Conclusion * Professor of Law and Hunton & Williams Research Professor, University of Virginia School of Law. ** Professor of Law & Co -Director, Joseph R. Crowley Program in International Human Rights, Fordham Law School; Fellow, Program in Law and Public Affairs, Woodrow Wilson School of Public and International Affairs, Princeton University. For their helpful comments and suggestions, we thank Kathy Bradley, Barry Friedman, Abner Greene, John Harrison, Thomas Lee, Caleb Nelson, William N elson, William Treanor, and participants in the NYU Legal History Colloquium, a legal theory workshop at the University of Virginia School of Law, a constitutional law workshop at the Georgetown University Law Center, and a faculty workshop at Fordham Law School. We would also like to thank Robert Scheef for his excellent research assistance. Hosted by The Berkeley Electronic Press 2 Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis 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 provid es 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 g rants the President an array of residual powers 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 Washington’s 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 Administration’s authority to use military force against Iraq had not Congress expressly granted such authority. And Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. The Thesis also has received recent su pport from Professor Phillip Trimble, and qualified support from 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 Arti cle 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 presents a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrativ e 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 hist orical 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 governme nt. http://lsr.nellco.org/fordham/flfc/papers/3 3 I. Introduction Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity. 1 It holds no less true for modern constitutions, including the Constitution of the U nited States. 2 Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. Perhaps more importantly, such arguments become more appealing than they ordinarily would be. It is therefore hardly surprising t hat assertions on behalf of presidential power meet with an especially receptive audience in a nation transfixed by September 11, Iraq, North Korea, and international terror. One perennial weapon in the executive arsenal is the so -called “Vesting Clause” of Article II of the Constitution. This clause, which provides that “The executive Power shall be vested in a President of the United States of America,”3 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 . .”4 This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President a b road array of residual powers not specified in the remainder of Article II. This argument, which we will call the “Vesting Clause Thesis,” was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington’s 1793 Neutr ality Proclamation.5 It has had a checkered career in constitutional law and interpretation ever since. One ostensible high point came