Vesting and the Veto
41 Pages Posted: 10 Oct 2022 Last revised: 30 Jan 2023
Date Written: October 8, 2022
Separation of powers formalists, who treat the Constitution’s Vesting Clauses as substantive power grants, have tended to regard congressional power as being of little interest. Nevertheless, this Article demonstrates that applying their methodology to Article I produces surprising results. The Article I Vesting Clause contains the apparently absolute conferral of “[a]ll legislative Powers herein granted” to Congress, but Article I’s provision for a presidential veto appears to be in tension with this pronouncement. This tension has significant implications for separation of powers theory. Either (1) the Article I Vesting Clause does not mean what it says (raising serious doubts about presidential power proponents’ analogous reliance on the Article II Vesting Clause as a substantive power grant), (2) the presidential veto is not a “legislative power” (raising deep challenges for separation of powers formalism), or else (3) the presidential veto is a power subject to the control of Congress. Formalists cannot avoid this dramatic conclusion without renouncing some of their other commitments. Formalists in recent decades have leveraged Vesting Clause essentialism as a wellspring of presidential power, but this Article shows that either formalists must abandon their embrace of Vesting Clause essentialism, undermining the putative constitutional basis for the unitary executive theory and inherent presidential powers, or else defenders of Congress have powerful textual resources to fight back on formalists’ own turf.
Keywords: Vesting Clauses, presidential veto, separation of powers, legislative power, presidential power, unitary executive theory, inherent powers, formalism
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