Vesting.

• Author: Shugerman, Jed Handelsman
• Position: Vested executive power of the president

Table of Contents Introduction I. The Problem: "Vesting" and Semantic Drift A. Seila Law and Collins B. Limited Monarchy and Blackstone's Defeasible "Vesting" C. Context: The Anti-unitary Founding II. The Text: "All," "The," "Exclusive," "Sole," and "Indefeasible" A. "All" B. "The" C. "Alone," "Exclusive," and "Sole" D. The Absence of "Indefeasible" III. "Vest" in Legal and General Dictionaries IV. "Vesting" in Colonial Charters and Early State Constitutions V. "Vesting" in the Constitutional Text and at the Convention A. "Vesting" in the 1787 Text B. The Virginia Plan VI. "Vesting" Fully and Partly in English and Founding-Era Usage, 1775-1787 A. "Vesting" in Ratification Documents B. The UVA Rotunda Founders Database: Fully Versus Partly Vesting, 1775-1788 VII. "Vesting" in Property Law Conclusion: A Judicial Vortex of "Vesting" Appendix A: Constitutional Clauses Illustrating the Use of "Vest," "All," "Exclusive," "Sole," and "Alone" Appendix B: "Vest" and "Vested" in Dictionaries, 1637-1846 Introduction

"The executive Power shall be vested in a President of the United States of America." (1) This first sentence of Article II has carried much weight for theories of presidential power. Justices and scholars who adhere to the unitary theory of presidential power invest heavily in this clause as one of three originalist pillars, along with the Take Care/Faithful Execution Clause and the Decision of 1789. They expansively read the words "executive" and "vested" to establish that presidential powers are exclusive and legislatively indefeasible. Unitary theorists thus claim that Article II gives the President executive powers unlimited by Congress (such as the ability to remove officers), protection from interbranch oversight, and broad foreign policy power.

The Supreme Court's unitary executive precedents repeatedly made these textual interpretations--and anti-textualist additions--over the past century. In 2020, Chief Justice John Roberts justified expanding the removal power in Seila Law LLC v. CFPB by adding the word "all": "Under our Constitution, the 'executive Power'--all of it--is 'vested in a President,' who must 'take Care that the Laws be faithfully executed.'" (2) In his lone Morrison v. Olson dissent, Justice Scalia wrote of the Executive Vesting Clause: "[T]his does not mean some of the executive power, but all of the executive power." (3) And of Article II and vesting: "[T]he President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law." (4) All three of these emphases are original. (5)

Many scholars have added the words "all" and "complete" to the Executive Vesting Clause in articles and recent briefs, seemingly assuming that the word "vesting" has a special legal connotation that places official powers like removal beyond the reach of legislative conditions. (6) Formalist scholars sometimes emphasize the etymology of the word "vest" from "vestment" or "vestiture" for judges or clergy as a grant of power, (7) but it is unclear how this ceremonial or clerical origin would signify exclusivity, completeness, or indefeasibility, especially in American law. Sometimes they suggest a link to the "vested rights" doctrine limiting legislative power over property. Richard Epstein articulated this assumption about the Constitution's vesting clauses in 2020:

The use of the term "vested" brings back images of vested rights in the law of property; that is, rights that are fully clothed and protected, which means, at the very least, that they cannot be undone by ordinary legislative action but remain fixed in the absence of some constitutional amendment. (8) Given that assumption, it makes sense that unitary executive scholars (also called unitary scholars) commonly use the word "indefeasible" (9) to describe presidential powers in Article II, because the word "defeasible" is most commonly associated with vested interests in property law, even though vesting in that context does not mean immunity from legislative power. (10) Every law student encounters the old constitutional law doctrine of "vested rights" as legislatively inalterable, (11) so it seems plausible that "vested" powers might also be legislatively inalterable.

The meaning of "vesting" for eighteenth-century English common law property (such as future versus vested interests), however, was not the same as the constitutional "vesting" of official powers. Moreover, the doctrine of "vested rights" as legislatively indefeasible did not emerge until the nineteenth century. (12) These claims are often a series of textual assertions or etymological assumptions without concrete eighteenth-century evidence to support the intuition that "vesting" connoted exclusivity or indefeasibility. (13) Some unitary theorists suggest that the overall structure of the Constitution and the absence of executive power being granted to anyone else indicate that the Executive Vesting Clause implies exclusivity and unconditionality. (14) From this context, one might borrow the terms "implicature," (15) "impliciture," (16) or "pragmatic enrichment" (17) from linguistics to explain the unitary theorists' insertions of "all," "alone," or "exclusively." But a closer study of the word "vest" as used in the eighteenth century and as defined in the era's dictionaries, as well as a close reading of the Constitution and other early charters, all suggest that the word "vest" and the Executive Vesting Clause did not imply indefeasibility or completeness.

This Article suggests that modern assumptions about "vesting" as indefeasible are likely the result of semantic drift, ahistoric projections back from the emerging nineteenth-century doctrine of "vested rights," and misplaced assumptions about eighteenth-century English and American political history. If "vesting" had such a connotation from an English tradition relating to either property or official power, where is the evidence of such a doctrine? In the English tradition of limited monarchy and an unwritten constitution, the legislature curtailed royal powers like the pardon and abolished the royal suspension power. (18)

From this Article's study of dictionaries and eighteenth-century usage, it seems that the word "vest" started as a religious ceremonial installation ("vestments" and an "investiture," to clothe with power) and then took on a meaning for real property. By the eighteenth century, "vest" could describe the delegation of official power, but its legal ramifications were unclear. (19) The word "vest" was both ambiguous (it had different meanings in these different contexts) and vague (there were different degrees of "vesting"). (20) Founding-era leaders tended to add words like "fully" and "all" to clarify a stronger form of vesting, often in the context of the people's rights, military command, and intriguingly, legislative powers. Contrast Article I's "all" for vesting legislative power with Article II's lack of "all." (21)

Following an "intratextual" method, (22) this Article focuses on the word "vest" and applies canons of interpretation to other words that might signal exclusivity throughout the Constitution. This Article also engages in an intertextual study of "vesting," comparing the word "vesting" in early colonial charters and early American constitutions. (23) The Article provides the first comprehensive survey of the use of "vesting" (1) at the Constitutional Convention and in the Ratification debates; (2) in databases of Framers' letters and speeches; and (3) in over thirty English dictionaries from the pre-1787 era, as well as eighteen after 1787.

Most unitary theorists seem to assume that "vesting" signifies a special constitutional status, as they infer royal prerogatives (24) and irrevocable separation of powers, seemingly an inference from the later usage of the word. Using the originalists' methods, this Article finds that the word "vest" generally meant a simple grant of powers without the constitutional significance of exclusivity or indefeasibility that the unitary theorists have imputed to it. This Article is part of my series (with co-authors) on Article II and the unitary theory's three pillars: the Executive Vesting Clause, (25) the Take Care Clause, (26) and the Decision of 1789. (27) Taken together, these articles suggest that none of the three pillars can support the unitary theory's claims of indefeasible executive power.

Some unitary theorists suggest that exclusivity does not come directly from the Executive Vesting Clause itself, but rather is implied from the Constitution's absence of any grant of executive power to the other branches. This reasonable basis for separation of powers is a mix of structural argument and an implication from expressio unius est exclusio alterius (the canon meaning "the explicit mention of one is the exclusion of another"). No other clause vests (or grants, or gives) executive power to another branch; even if the word "vesting" is ambiguous on its own, the structure of the Articles with three separate power-grant clauses implies exclusivity. (28) "The executive power," in this light, is a "mass noun," not a "count noun," and thus one might infer that the President must hold the power. (29) But having power does not mean exercising that power absolutely or indefeasibly. Recent cases have refused to recognize this, turning on a general rule of legislative indefeasibility. (30)

However, the Constitution often uses the word "the" not as a mass noun, but as a formalism without more significance. Moreover, even if one assumes that the Constitution's structure implies exclusivity--or, arguendo, that "executive power" or "take care" implies removal and other powers--one could reasonably conclude that the other branches may not exercise executive power directly (for example, the Senate blocking removal in Myers v. United States or Congress exercising removal on its own in Bowsher v. Synar)...