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Friday, May 12, 2023

Justice Jackson on the Vesting Clause

One criticism of Justice Jackson's concurrence in Youngstown is that he misread the Vesting Clause of Article II. The opinion says that the Vesting Clause is "an allocation to the presidential office of the generic powers thereafter stated." This is wrong. The President exercises many executive powers that are not stated in Article II and do not come from a congressional delegation. Where do those powers come from? They must come from the Vesting Clause unless you accept a broad theory of "inherent" or "unwritten" executive powers.

Justice Jackson's drafts grasped this idea better than the final version. Here is how he explained the Vesting Clause there: “The obvious meaning, it seems to me, is that the Executive power appropriate to the form of Government created by the entire Constitution is what is vested in the President and that on any given issue a study of its interrelated powers and responsibilities must determine the question.”This is a much better explanation. Why, then, did he change this?

I don't know, though one possible answer is that revisions sometimes introduce--rather than correct--errors.

Posted by Gerard Magliocca on May 12, 2023 at 09:31 AM | Permalink


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