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ArtI.S1.1 Overview of Legislative Vesting Clause

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Legislative Vesting Clause of the Constitution grants specific and limited legislative powers1 to a bicameral Congress of the United States, which is composed of a House of Representatives and Senate.2 As such, the Legislative Vesting Clause and the coordinate Executive and Judicial Vesting Clauses delineate the powers the Framers accorded the U.S. Government’s Legislative, Executive, and Judicial Branches.

Historical sources from the decades leading up to the ratification of the Constitution suggest that the Legislative Vesting Clause would have been understood to: (1) limit the powers of Congress to those expressly granted in the nation’s founding document; (2) diffuse legislative power by creating a legislature with two chambers; and (3) limit the extent to which the other branches of government could exercise legislative power.3 Although documents authored by, known to, or relied upon by the Founders support these three interrelated purposes of the Legislative Vesting Clause, scholars continue to debate whether the Framers or others alive at the time of the Founding would have understood the Clause to prohibit Congress from empowering the other branches of government or private entities to govern private conduct.4

At least one of the Framers defined “legislative power” as the power to “prescribe rules for the regulation of society.” The Federalist No. 75 (Alexander Hamilton). See also John Locke, Two Treatises of Government 382 (Peter Laslett ed., Cambridge Univ. Press 1967) (1690) (defining the legislative power as “that which has a right to direct how the Force of the Commonwealth shall be imploy’d for preserving the Community and the Members of it.” ). back
U.S. Const. art. I, §§ 1, 8. In McCulloch v. Maryland, the Supreme Court stated that the Constitution created a government of enumerated powers. 17 U.S. (4 Wheat.) 316, (1819) ( “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.” ). back
See, e.g., Baron Charles de Montesquieu, Spirit of Laws (1748); John Locke, Two Treatises of Government (Peter Laslett ed., Cambridge Univ. Press 1967) (1690); David Hume, Of the Original Contract (1752); Marchamont Nedham, The Excellence of a Free State (1656); William Blackstone, Commentaries on the Laws of England (1765). back
Compare Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1733–34 (2002) ( “[T]here’s remarkably little evidence that the Framers envisioned [a nondelegation constraint] on legislative authority. . . . The Framers’ principal concern was with legislative aggrandizement—the legislative seizure of powers belonging to other institutions—rather than with legislative grants of statutory authority to executive agents.” ), with Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 334 (2002) ( “If one is concerned about the original meaning of the Constitution, the widespread modern obsession with the nondelegation doctrine may have some justification.” ). back