Executive power essentialism and foreign affairs.

Author:Bradley, Curtis A.
 
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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 United States. (2) Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism.

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 broad array of residual powers not specified in the remainder of Article II. We will call this claim the "Vesting Clause Thesis."

The Vesting Clause Thesis was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington's 1793 Neutrality Proclamation. (5) The Thesis has had a checkered career in constitutional law and interpretation ever since. One ostensible high point came in Myers v. United States, (6) in which a majority of the Supreme Court relied on the Vesting Clause Thesis in holding that the President had an exclusive power of removing executive officers. (7) Even in Myers, however, the Court's reliance on the Vesting Clause Thesis was minimal, and the Court's analysis and holding have since been severely qualified, (8) An offsetting low point famously occurred in the steel seizure case, Youngstown Sheet & Tube Co. v. Sawyer, (9) in which the Court rejected President Truman's broad claim of executive power, a claim that was based in part on the Article II Vesting Clause. (l0) Although the majority in Youngstown did not specifically address the Vesting Clause Thesis, Justice Jackson addressed it in his influential concurrence and repudiated it. (11)

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 Congress not expressly granted such authority. (12) The Administration's reliance on the Vesting Clause Thesis is also evident in controversial memoranda concerning treatment of detainees that were prepared by the Department of Justice and the Department of Defense after September 11. (13) In terms of academic support, professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. (14) Professor John Yoo has invoked the Thesis in a number of recent articles as support for a variety of alleged presidential foreign affairs powers. (15) The Thesis also has received recent support from Professor Phillip Trimble, (16) and the historical account that ostensibly supports it parallels an interpretation advanced in a thoughtful recent book by Professor H. Jefferson Powell. (17)

The principal attraction of the Vesting Clause Thesis is that it provides a straightforward solution to what appears to be a paradox of American constitutionalism: the specific grants of power in Article II are few and limited, especially when compared with Congress's extensive list of powers in Article I, and yet the President has long been a significant--some argue, dominant--institutional actor in American government. (18) The President has been particularly dominant with respect to foreign affairs, and indeed is sometimes referred to as the "sole organ" for the United States in its international relations. (19) The Vesting Clause Thesis reconciles the text of the Constitution with the breadth of presidential power by stipulating that the Article II Vesting Clause grants the President all powers that are in their nature "executive," subject only to the specific exceptions and qualifications set forth in the rest of the Constitution.

In addition to the constitutional text, advocates of the Vesting Clause Thesis rely heavily on history. Their historical claim is that constitutional theorists in Britain and Europe had worked out a common, comprehensive, and detailed conception of the natural division of governmental power well before American independence, and that the Constitution of the United States--with discrete textual exceptions--embodied this reigning separation of powers understanding. When the Founders referred in the Article II Vesting Clause to the "executive Power," the argument runs, they referred to an understood bundle of powers and therefore had no need to enumerate specific executive powers in the remainder of Article II. Rather, such an enumeration became necessary only for those few instances in which the Founders were deviating from the prevailing understanding--for example, when they divided an executive power between the President and the Senate. Proponents of this account line up purported support from every relevant development leading to the Constitution's ratification: seventeenth- and eighteenth-century political theory, the revolutionary and "critical" periods under the Articles of Confederation, the Federal Convention, and the state ratification debates. The most powerful evidence, however, allegedly comes from the statements and practices of government officials during the Washington Administration, which, it is claimed, confirm the consensus underlying Article II.

Armed thus with text and history, scholars have relied on the Vesting Clause Thesis to cash out a number of specific claims concerning presidential power. Some argue, for example, that the President has the power to terminate treaties because that power is executive in nature and is not expressly delegated to Congress or the Senate. (20) Others assert that the President has broad unenumerated war powers in situations not involving congressional declarations of war, since the war power, too, is in its nature executive. (21) And still others have invoked the Vesting Clause Thesis in support of a power of the President to conclude certain international agreements on his own authority, notwithstanding the requirement in Article II of the Constitution that the President obtain the advice and consent of two-thirds of the Senate in order to make treaties. (22) The potential breadth of the Vesting Clause Thesis is further illustrated by dicta in a recent Supreme Court decision, American Insurance Association v. Garamendi, in which the Court appeared to suggest that the President might have the power to preempt state laws simply by articulating the "foreign policy of the Executive Branch." (23)

This Article challenges 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 in other plausible ways and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. Familiar canons of construction, such as expressio unius, and other interpretive principles further cut against the Vesting Clause Thesis. That thesis, moreover, cannot explain some of Article II's specific grants of foreign affairs authority, and it sits uneasily with the Constitution's enumerated powers structure.

Given that the textual case for the Vesting Clause Thesis is at best uncertain, the persuasiveness of the thesis ultimately depends on history. Here there is a particular irony. Proponents of the Vesting Clause Thesis are often also advocates of a classically originalist approach to constitutional interpretation, pursuant to which the understanding of the Constitution's framers and ratifiers controls constitutional meaning. Yet, as we will show, the historical sources that are most relevant to the Founding, such as the records of the Federal Convention, the Federalist Papers, and the state ratification debates, contain almost nothing that supports the Vesting Clause Thesis, and much that contradicts it.

Supporters of the Vesting Clause Thesis attempt to compensate for the lack of direct Founding support by focusing on political theory and practice both before and after the ratification of the Constitution. Their historical narrative thus 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. (24) 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 Founders' self-conscious rejection 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.

Moreover, as usually presented, the post-constitutional practice of the Washington Administration provides only half the story. Washington and his cabinet, perhaps unsurprisingly, tended to stake out pro-executive positions with respect to the management of U.S. diplomacy. To...

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