Georgetown Center for the Constitution

Providing a survey of the history and original understanding of the Legislative Vesting Clause and illustrating incompatibility of the clause with the administrative state.

Arguing that the Vesting Clauses are vague and are both underread by functionalists and overread by formalists. Arguing that Article I, Section 1 is only “somewhat more determinate” than the Executive and Judicial Vesting Clauses.

Arguing that the Article II Vesting Clause follows the structure of Article I, Section 1 and is best read as a “designation, followed by organizational details, followed by power grants.” Including a discussion of “the structures of eighteenth-century documents conferring enumerated powers” (including royal grants to colonial governors) with respect to Article I, Section I.

Arguing that the “herein granted” language in Article I, Section I is a stylistic, not substantive, divergence from the Article II and Article III Vesting Clauses.

Following up on “Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated” by inquiring into whether Congress might permissibly delegate “unconventional” powers.

Arguing that the Treaty Clause does not grant the President and Senate unlimited license but parallels the Sweeping Clause’s “implementational” operation. Noting that Article I, Section 8 “does not grant to Congress all powers that would have been understood as ‘legislative’ by an informed eighteenth-century audience. Instead, it specifies that Congress–defined as the House and Senate–is the sole institution vested with, and thus charged with exercising, whatever subset of the universe of ‘legislative’ powers are ‘herein granted.’”

Examining text, history, and precedent to conclude that “exclusive delegation”—by which Congress, but only Congress, may delegate legislative power—is at least as justifiable as (and is normatively preferable to) non-delegation.

Comparing the Articles I, II, and III’s Vesting Clauses and noting that Articles II and III actually vest power, while Article I merely identifies the institutional actor that may exercise the succeeding enumerated powers.

Contrasting the phrasing of the Vesting Clauses in Articles I and II and challenging the “Vesting Clause Thesis” of broad executive power on textual and historical grounds.

Arguing that “[t]he purpose of the phrase ‘herein granted’ is to indicate that no legislative subjects in addition to those listed in the Constitution may be implied. It does not speak to what constitutes legislative power and thus what limitations are implicit in that concept.”

Arguing that the evidence of an original understanding on non-delegation is ambiguous.

Arguing that the Legislative Vesting Clause refers to the “power to make rules for society,” not the de jure powers of lawmakers (in particular the power to vote on legislation).

According with Professor Calabresi’s view of an explicitly cabined Legislative power, noting that “this language expressly confirms that Congress can exercise only those legislative powers referenced elsewhere in the Constitution rather than any imaginable powers that bear the label ‘legislative.’”

Arguing that the Legislative Vesting Clause does not speak directly to non-delegation and that “a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power.”

Arguing that the Executive Vesting Clause is more important than the Legislative Vesting Clause for non-delegation purposes because the Executive may exercise power within the “Executive Power,” irrespective of whether that power can also be described as legislative.

Making textual, structural, and historical arguments that “the Constitution does not clearly prohibit Congress from delegating legislative power to states.”

Noting the limitation of legislative power to subsequent explicit textual grants, explaining that “the presence of the ‘herein granted’ language is unique, since, significantly, it suggests that the Article I Vesting Clause picks up almost its entire content from the list of enumerated powers that follow the Clause in subsequent sections of Article I and of the Constitution.”

Discussing the Founders’ theory of the separation of powers and the decisions made to vest specific powers with each branch.

Noting that Article 1, Section 8, among other clauses, enumerates the powers to be exercised and the institutional actors that may exercise them and arguing that this enumeration is not at all like the “general jurisdiction” that the legislature is now thought to enjoy.

Arguing that “Article I was intended to forbid delegation of legislative power,” and so Congress’ ability to delegate is limited to rules binding on the government itself.

Noting that the contrasting phrasing between the Vesting Clauses in Articles I, II, and III indicates an intentionally limited Congressional power that “runs counter to present constitutional practice, according to which Congress is widely perceived to have a general legislative power . . . .”