Tuesday, March 2, 2010

Natelson on Drafting Practices and the Executive Vesting Clause

Robert G. Natelson, University of Montana, has posted The Original Meaning of the Constitution's "Executive Vesting Clause"--Evidence from Eighteenth-Century Drafting Practice, which appears in the Whittier Law Review 31 (2009): 1-46. Here is the abstract:
Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution's so-called "Executive Vesting Clause," the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President's powers are limited to those enumerated elsewhere in the Constitution.

This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the "Executive Vesting Clause" as a mere designation is consistent with those customs, while treating it as a grant is not. Indeed, the grant interpretation would result in a document structure so anomalous as to render it unlikely that the Founders intended that interpretation.

This study marshals evidence overlooked by prior commentators, such as the royal commissions to American colonial governors, power granting documents employed by the Continental Congress, and the eighteenth-century law governing grants