HEREIN OF "HEREIN GRANTED": WHY ARTICLE I'S VESTING CLAUSE DOES NOT SUPPORT THE DOCTRINE OF ENUMERATED POWERS.

• Author: Primus, Richard

INTRODUCTION

Article I of the United States Constitution begins as follows: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" (1) That text is sometimes called the Vesting Clause, (2) or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. (3) And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I's Vesting Clause is not fully parallel to that of the other two. The Vesting Clauses of Articles II and III say, respectively, that "The executive Power shall be vested in a President of the United States of America" (4) and "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (5) They do not say that the President and the courts exercise the executive and judicial powers "herein granted."

Working from the intuition that that difference in language must be meaningful, several leading professors of constitutional law have adopted what I will call the enumerationist reading of Article I's Vesting Clause. (6) According to the enumerationist reading, it matters that Article I's Vesting Clause speaks of powers "herein granted" rather than saying, in parallel with the other clauses, something like "The legislative power shall be vested in a Congress of the United States." To say "The legislative power shall be vested in a Congress of the United States," this line of thinking runs, would be to say that Congress enjoys legislative power in general. To say instead that Congress is invested with the "legislative powers herein granted," the argument continues, is to say that the legislative power granted to Congress is limited in a way that the executive and judicial powers granted to the other branches are not. Rather than exercising general legislative power, Congress is entitled to exercise only those legislative powers herein granted--that is, in the enumerationist understanding, those powers affirmatively specified in the text of the Constitution. (7)

A recent formulation of the point by Lawrence Lessig is illustrative:

[T]he federal government, unlike state governments, has only the powers that are delegated to it by the Constitution. The Framers made this idea explicitly clear in Article I, where they wrote, "Congress has the powers herein granted." "Herein granted"--not any power you might imagine a government to have; just those powers specified in the Constitution. (8) Note that in Lessig's presentation, the principle that Congress may exercise only the specific powers mentioned in the Constitution is not an inference from the text of the Vesting Clause. It is the plain meaning of the text: the language makes the point "explicitly clear." (9)

But it doesn't. It doesn't even come close.

This Article explains why the Vesting Clause of Article I does not establish, or even support, the idea that Congress may exercise only its constitutionally enumerated powers. To be sure, that idea--for ease of reference, the enumeration principle--might be correct even if the Vesting Clause lends it no support. The enumeration principle might rest instead on the text of the Tenth Amendment, (10) or the architecture of Article I, Section 8, (11) or a proposition about federalism, (12) or a traditional understanding going back to the Founding. (13) As it happens, and for reasons I have explained elsewhere, those other possible bases for the enumeration principle are also much weaker than commonly recognized. (14) The project of this paper, however, is not to challenge the enumeration principle as a whole. It is to attack, frontally and thoroughly, one of the supports on which that principle is said to rest. If the attack succeeds, perhaps readers will be more willing to consider the possibility that the enumeration principle's other supposed foundations are vulnerable as well. But even if readers are not inclined to doubt the enumeration principle more broadly, constitutional lawyers should not go around saying that the Vesting Clause establishes that principle. Because it does not.

In Part I of this Article, I expose problems with the enumerationist reading of Article I's Vesting Clause. Then, in Parts II and III, I offer better ways of understanding that Clause. In Part II, I show that if the nonparallel phrasing of the Constitution's three Vesting Clauses is to be given substantive legal significance, it makes more sense to read Article I's Vesting Clause as a statement that legislative power is vested solely in Congress than as a statement that Congress is limited to powers specifically enumerated. In Part III, I suggest that a yet better way to read the three Vesting Clauses is to accept that their nonparallel phrasing might not have any legal significance.

Two preliminary points are in order before proceeding further. First, the contrast between the language of Article I's Vesting Clause and that of Article II is commonly offered in support of two different propositions. One is that Congress can act only on the basis of specifically enumerated powers. The other is that the President, whose Vesting Clause does not speak of powers "herein granted," enjoys general executive power rather than just a collection of specific textual authorizations. (15 ) My focus in this Article is on the first of those propositions. But if I am right that Article I's Vesting Clause does not indicate that Congress is limited to a set of textually enumerated powers, then the contrast between the Vesting Clauses of Articles I and II does not support the claim that Article II vests general executive power in the President either. It might still be the case that the President should be understood to enjoy general executive power, but the contrasting language of the Vesting Clauses would not be a reason why. (16)

Second, the prominence of arguments based on the non-parallel phrasing of the Vesting Clauses seems to be a relatively recent phenomenon, dating more or less from the 1990s. Not that such arguments were completely novel at that time: as scholars of presidential power know, Alexander Hamilton used the contrast to defend President Washington's 1793 neutrality proclamation against the charge that the President had only those powers specifically enumerated in the Constitution. (17) But Hamilton's argument seems to have been the product of post-ratification creativity, rather than the articulation of a generally shared understanding. As I will show below, the idea that Article I's Vesting Clause limits Congress to a set of textually enumerated powers was virtually unknown in the ratification debates of 1787-88. (18) It was also absent from the First Congress, and conspicuously so. The First Congress prominently featured conflict over the question of whether Congress was limited to powers specifically enumerated in the Constitution: think, for example, of the fight over chartering the Bank of the United States. The Representatives arguing for the enumerationist position in those debates had every incentive to point to the Vesting Clauses for support, if they thought the Vesting Clauses supported their view. None of them did, which suggests that none of them thought Article I's Vesting Clause established the enumeration principle. (19) So Hamilton's 1793 argument indicates that it was possible for a smart lawyer in the Early Republic to hit upon this reading, but it does not seem to have been an intuitive reading for the rest of the Founding generation.

Nor did American lawyers make contrasting the Vesting Clauses into a staple feature of constitutional argument after Hamilton showed them the way. A generation after Hamilton, Justice Joseph Story's Commentaries on the Constitution of the United States devoted roughly three thousand words to a chapter on Article I's Vesting Clause and at no point even hinted at the possibility that its text might bear on the scope of the powers vested in Congress, (20) and his discussions of the other Vesting Clauses include no mention of their being differently phrased. (21) I am aware of only one case in the Constitution's first two centuries in which a federal court read Article I's Vesting Clause to support the idea that Congress can exercise only a set of textually enumerated powers. (22) And in the law-review literature, it is hard to locate arguments from the non-parallel phrasing of the Vesting Clauses prior to the 1990s. (23) None of this means that the idea was ever wholly forgotten or affirmatively rejected. (24) But it does not seem to have been commonly held either.

Things seem to have changed at roughly the same time that the Rehnquist Court was handing down landmark decisions like New York v. United States (25) and United States v. Lopez. (26) In 1994, in a Harvard Law Review article characterizing the entire modern administrative state as unconstitutional, Gary Lawson read the "herein granted" language of Article I, Section 1 to establish the enumerationist interpretation of that Vesting Clause. (27) The following April, Laurence Tribe offered the enumerationist reading in another Harvard Law Review article, (28) and Justice Clarence Thomas made the same move in his Lopez concurrence. (29) Many others have adopted that reading in the quarter century since. (30)

But it was not always thus. For most of American history, the language of Article I's Vesting Clause was not standardly given the enumerationist reading. Nor should it have been. The idea that Article I's Vesting Clause restricts Congress to a set of textually enumerated powers cannot withstand careful scrutiny.

1. THE ENUMERATIONIST READING

   According to the enumerationist reading of the Vesting Clause, "All legislative Powers herein granted...