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Wednesday, February 19, 2020

The Fourth Vesting Clause and Explicitly Authorized Delegation

Beyond the cognate Article I, II, and III vesting clauses that parcel sovereignty into legislative, executive, and judicial powers, there is a fourth “vesting” clause that uses the language of “vest” to allow the grant of power to another branch of government. It is the “Excepting Clause,” or the excepting provision of the Appointments Clause. It is instructive for what it allows and how it allows it.

“But the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Art. II, § 2, cl. 2, emphasis added.)

As far as I’m aware, it’s the sole clause in the Constitution to explicitly contemplate horizontal delegation of power, by which I mean legislative reallocation of initially granted authority to another branch. The Take Care Clause contemplates vertical subdelegation within the executive branch.

How is the delegation allowed? Initially, Article II grants the nomination and appointment power to the President upon the qualification that the Senate provides its advice and consent. The Senate and House acting together, however, can opt out of that default regime for inferior officers through ordinary legislation.

The policy basis for the delegation is convenience in light of the anticipated possibility of numerous officers requiring appointment. Notwithstanding that important value, the scope of authorized delegation is only a cabined one. The Clause authorizes only delegation of a portion of the appointment power—for inferior officers only—and only to particular recipients of delegated power, i.e. the Courts, in the Heads of (executive) Departments, or in the President alone. Finally, delegation ends formal congressional involvement in the appointment, at least until the legislative grant of appointing authority is repealed.

This instance of explicitly authorized delegation is instructive in at least two ways:

  1. It is evidence the Framers knew how to authorize delegation when they wanted to, and when they did, the scope of the delegation was authorized only limitedly.
  2. It recognizes that delegation is never just a horizontal choice. The Clause indicated concern over the anticipated recipients of the delegated power who were clearly identified too, recognizing delegation as a vector with "x" and "y" components. Inter-branch delegation is horizontal (from one branch to another, e.g. Article I to Article II) but also vertical in that Congress grants the power with a designated level of officer within the branch, e.g. President v. Attorney General. That anchoring of delegated functions more remotely from the President within the executive branch anticipated the modern trend toward presidential administration of power.

Of course, the Excepting Clause by its terms doesn't say anything about delegation of rulemaking authority and need not be read to disallow delegation of rulemaking. Those who eschew formalism can certainly resort to many functionalist, pragmatic justifications for delegation. Those, however, like myself, who find textualism and formalism persuasive should consider the existence of a fourth vesting clause as textual evidence that the Founders knew how to authorize and limit delegation when they intended to.

Posted by T. Samahon on February 19, 2020 at 02:53 PM in Constitutional thoughts, Law and Politics | Permalink


OK Samahon, however, one can't find all this in the text. Must be introduced from the outside. Text is not sufficient. As well the Subjective intent. Structural and historical arguments, are not the text itself of course.

So, in a way or other, it is a never ending story simply. And those, were really negligible illustrations.

We look upon the text, and deny or forget, hundreds of thousands of rulings. Rulings, that have rendered the original text or wording, simply less relevant and remote.

And the Fourth Amendment, doesn't bear unreasonable language. That is not what I have written. What I have written, is that the attitude generally speaking is unreasonable.

Finally, I don't see nothing in the language of the Fourth amendment, that can be characterized as " open textured". On the contrary, it is strict. Rigid. Conclusive ( at least relatively ). It doesn't even mention any exceptional case or language. Here quoting it:

" The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If there is rigid one. Well, the Fourth amendment, is pretty good candidate for it, dictating : "shall not be violated ". Even not mentioning any exception whatsoever.So, let them cross the border with hell of toxic substance, or explosives. Shall not be violated finally.


Posted by: El roam | Feb 19, 2020 5:25:35 PM

@El roam (4:18:57 PM): As I mentioned in my posts, jurists inclined to favor pragmatic approaches to interpretation over textual ones will remain unpersuaded by this argument against delegation of rulemaking authority. There are many modes of interpretation that I'd embrace, including structural and pre-ratification historical arguments. Whether a textual analysis should prevail over others depends on their relative merits/demerits.

As to your counterexamples, the Fourth Amendment's "unreasonable" language is open textured and invites a constitutional common law fleshing out what constitutes reasonable searches, including how we handle searches at the border. So, at a quick consideration, I don't see text precluding that. As for presidential absolute immunity, there is no text speaking directly to it, but the Court's structural and pre-ratification historical analyses considered the uniqueness of the presidency and English practice as salient in reaching its conclusion. That is a closer call for me given textually provisioned immunities for legislative officers and the absence of any similar immunity for a President, but the strength of the structural and historical arguments carry the day.

Posted by: T. Samahon | Feb 19, 2020 4:48:39 PM

Interesting, but the idea that " the founders knew how to authorize and limit delegation when they intended to " is really unreasonable with all due respect. Subjective intent, can't solve problems or issues occurring in real life. Not only cultural, social, technological changes, but, even when observing things at the outset, it is, or wasn't reasonable. Just two negligible illustrations:

The fourth amendment provides, that no search without reasonable cause or suspicion, or without warrant indeed, shall be carried out. Yet, even at the time, had to be violated, in light of the need, to conduct unconstitutional searches in borders. No suspicion, no warrant, how to search on one person or his baggage or whatever he would carry on him, while crossing borders ? This is a warranted exception, not mentioned by the founders.

Or, take immunity of the president. If immunity has been granted to Congressmen ( speech and debate) one may argue, that if they new how to grant immunity, then, the president, can't enjoy any immunity. Is it so ? Recently you have posted on it indeed.


Posted by: El roam | Feb 19, 2020 4:18:57 PM

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