A vesting clause is language that grants authority to the main branches of the federal government, namely the executive (President), legislative (Congress), and judicial (Supreme Court) branches, through provisions in the U.S. Constitution.

Legislative powers are vested to the U.S. Senate and House of Representatives through U.S. Constitution Art. I, § 1, which reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Executive powers are granted to the President through U.S. Constitution Art. II, § 1, Cl. 1, which reads in part, “The executive Power shall be vested in a President of the United States of America.”

Judicial powers are vested through U.S. Constitution Art. III, § 1, which reads, “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.”

Vested Executive Powers

At the time the U.S. Constitution was conceived, the Executive Vesting Clause granted the President powers that were common for heads of state. These include:

  • The ability to appoint and remove executive officers (cabinet and individual federal agencies, such as the FBI, Securities and Exchange Commission, and Department of Commerce, as well as the Vice President).
  • The authority to conduct foreign affairs that are not granted to Congress or shared with the Senate. This means the power to appoint ambassadors and communicate with other heads of state.
  • The authority to act as Commander-in-Chief of the Armed Services.
  • Responsibility to enforce and execute legislation created by Congress.

Path to Executive Powers

The Executive Vesting Clause was a departure from the power granted to the President in the Articles of Confederation, the first constitution of the United States written during the U.S. Revolutionary War. The Articles of Confederation reflected the hesitancy to vest too much power into the office of one individual. Instead, the Constitutional Congress held Executive Powers, and all states in the new country remained sovereign in regards to the ability to levy taxes and regulate commerce.

The drawbacks of such an arrangement soon proved burdensome, as an independent chief executive was necessary to act swiftly to uphold laws and conduct affairs with foreign nations confidentially.

The subjugation of the federal government to the states also proved unworkable. Most states also vested Executive Powers with the legislature, resulting in many of the same problems inherent in the lack of a chief executive on the federal level.

Despite their initial apprehension of placing too much power in the hands of one individual, lawmakers crafted a constitution that gave a President powers in certain areas, most notably foreign affairs and law execution, but limited complete power through a series of checks and balances afforded to the other branches of government, such as the ability to declare war and regulate commerce.

The Evolution of the Executive Vested Clause

It has long been a point of contention whether the Executive Vesting Clause actually grants the President any real power besides the ability to conduct foreign affairs and see to the proper execution of laws enacted by Congress. Many argue that it was always the Founding Fathers’ intention to keep most real power in the hands of the people, or Congress, rather than one individual.

After all, although the President may conduct foreign affairs, the office has no authority to enter into treaties or declare war, and the office only sees to it that laws are obeyed without the ability to craft those laws. The President does have veto power over laws that are not agreed with, but Congress has the power to override that veto if it sees fit.

However, the President does indeed have certain authorities vested through the U.S. Constitution that cannot be checked or balanced by either the legislature or judiciary.

These include acting in the role of Commander in Chief of the Army and Navy, as well as the power to call up state militias for service as needed. The President also has the ability to invoke “executive privilege” to shield communications deemed “intra-executive” from the review of Congress and the judiciary, in addition to having certain immunities in court and to not be sued for actions undertaken in the role of President. The President also has “emergency powers” to declare a state of emergency should conditions warrant, assuring peace and the enforcement of laws in times of turmoil.

The Executive Vesting Clause has, for the most part, withstood the test of time, and with vigilance by the other branches of government should continue to do so.

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