“Vesting”: Text, Context, Dictionaries, and Unitary Problems SSRN
52 Pages Posted:
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, that as a strict separation of powers, the president possesses executive powers like removal exclusive from congressional limitations (i.e., they are indefeasible).
However, unitary judges and scholars have not provided historical evidence that “vesting” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the word’s usage in early colonial charters and American constitutions, the Convention and ratification debates, and especially from over forty dictionaries from the era. The bottom line is that, in the eighteenth century, the word “vest” generally did not connote exclusivity, indefeasibility, or a special constitutional status for official power.
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.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.
Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. A method of “intratextualism” and the canon of expressio unius, “the explicit mention of one is the exclusion of another,” offers clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.
In the first survey of the word “vest” in the era’s dictionaries from 1640 to 1846 (31 editors producing 50 editions, most before 1787), this Article finds that they generally defined “vest” in terms of individual property rights (most often landed property) without any reference to official powers. Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and no dictionary available for this study spelled out a definition as exclusive or indefeasible powers.
At best, its meaning is unclear, and more likely, its ordinary meaning was a simple grant of powers without such absolute or indefeasible connotations beyond legislative checks. This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity). If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Myers, Free Enterprise, Seila Law, and indefeasible removal powers.
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