Executive Vesting Clause: Current Doctrine

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Executive Power: Separation-of-Powers Judicial Protection

Significant change in the position of the Executive Branch respecting its position on separation of powers may be discerned in two briefs of the Department of Justice’s Office of Legal Counsel, which may spell some measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine.1 The two opinions withdraw from the Department’s earlier contention, following Buckley v. Valeo, that the execution of the laws is an executive function that may be carried out only by persons appointed pursuant to the Appointments Clause, thus precluding delegations to state and local officers and to private parties (as in qui tam actions), as well as providing glosses on the Take Care Clause (Article II, § 3) and other provisions of the Constitution. Whether these memoranda signal long-term change depends on several factors, including whether they are adhered to by subsequent administrations.

In striking down the congressional veto as circumventing Article I’s bicameralism and presentment requirements attending the exercise of legislative power, the Court also suggested in INS v. Chadha2 that the particular provision in question, involving veto of the Attorney General’s decision to suspend deportation of an alien, in effect allowed Congress impermissible participation in execution of the laws.3 And, in Bowsher v. Synar,4 the Court held that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, stated in Chief Justice Burger’s opinion of the Court in Chadha, that “the powers delegated to the three Branches are functionally identifiable,” distinct, and definable.5 In a standing-to-sue case, Justice Scalia for the Court denied that Congress could by statute confer standing on citizens not suffering particularized injuries to sue the federal government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to allow Congress to divest the President of his obligation under the Take Care Clause and to delegate the power to the judiciary.6 On the other hand, in the independent counsel case, although acknowledging that the contested statute restricted a constitutionally delegated function (law enforcement), the Court upheld the statute, using a flexible analysis that emphasized that neither the legislative nor the judicial branch had aggrandized its power and that the incursion into executive power did not impermissibly interfere with the President’s constitutionally assigned functions.7

At issue in Synar were the responsibilities vested in the Comptroller General by the “Gramm-Rudman-Hollings” Deficit Control Act,8 which set maximum deficit amounts for federal spending for fiscal years 1986 through 1991, and which directed across-the-board cuts in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to implement the reductions specified in the Comptroller’s report. The Court viewed these functions of the Comptroller “as plainly entailing execution of the law in constitutional terms. Interpreting a law . . . to implement the legislative mandate is the very essence of ‘execution’ of the law,” especially where “exercise [of] judgment” is called for, and where the President is required to implement the interpretation.9 Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the Court held, executive powers may not be delegated to him. “By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.” 10

The Court in Chadha and Synar ignored or rejected assertions that its formalistic approach to separation of powers may bring into question the validity of delegations of legislative authority to the modern administrative state, sometimes called the “fourth branch.” As Justice White asserted in dissent in Chadha, “by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments . . . . There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term.” 11 Moreover, Justice White noted, “rules and adjudications by the agencies meet the Court’s own definition of legislative action . . . .” 12 Justice Stevens, concurring in Synar, sounded the same chord in suggesting that the Court’s holding should not depend on classification of “chameleon-like” powers as executive, legislative, or judicial.13 The Court answered these assertions on two levels: that the bicameral protection “is not necessary” when legislative power has been delegated to another branch confined to implementing statutory standards set by Congress, and that “the Constitution does not so require.” 14 In the same context, the Court acknowledged without disapproval that it had described some agency action as resembling lawmaking.15 Thus Chadha may not be read as requiring that all “legislative power” as the Court defined it must be exercised by Congress, and Synar may not be read as requiring that all “executive power” as the Court defined it must be exercised by the executive. A more limited reading is that when Congress elects to exercise legislative power itself rather than delegate it, it must follow the prescribed bicameralism and presentment procedures, and when Congress elects to delegate legislative power or assign executive functions to the executive branch, it may not control exercise of those functions by itself exercising removal (or appointment) powers.

A more flexible approach was followed in the independent counsel case. Here, there was no doubt that the statute limited the President’s law enforcement powers. Upon a determination by the Attorney General that reasonable grounds exist for investigation or prosecution of certain high ranking government officials, he must notify a special, Article III court which appoints a special counsel. The counsel is assured full power and independent authority to investigate and, if warranted, to prosecute. Such counsel may be removed from office by the Attorney General only for cause as prescribed in the statute.16 , 591 et seq. The independent counsel was assuredly more free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court carefully assessed the degree to which executive power was invaded and the degree to which the President retained sufficient powers to carry out his constitutionally assigned duties. The Court also considered whether in enacting the statute Congress had attempted to aggrandize itself or had attempted to enlarge the judicial power at the expense of the executive.17

The Zivotofsky Case

The Supreme Court’s decision in Zivotofsky v. Kerry appears to be the first instance in which the Court held that an act of Congress unconstitutionally infringed upon a foreign affairs power of the President.18 (President could not direct state courts to reconsider cases barred from further review by state and federal procedural rules in order to implement requirements flowing from a ratified U.S. treaty that was not self-executing, as legislative authorization from Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribunals convened by presidential order did not comply with the Uniform Code of Military Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized during quasi-war with France, when Congress had not authorized such seizures). The case concerned a legislative enactment requiring the Secretary of State to identity a Jerusalem-born U.S. citizen’s place of birth as “Israel” on his passport if requested by the citizen or his legal guardian.19 The State Department had declined to follow this statutory command, citing longstanding executive policy of declining to recognize any country’s sovereignty over the city of Jerusalem.20 It argued the statute impermissibly intruded upon the President’s constitutional authority over the recognition of foreign nations and their territorial bounds, and attempted to compel “the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns.” 21

The Zivotofsky Court evaluated the permissibility of the State Department’s non-adherence to a statutory command using the framework established by Justice Jackson's concurring opinion in Youngstown, under which executive action taken in contravention of a legislative enactment will only be sustained if the President’s asserted power is both “exclusive” and “conclusive” on the matter.22 The Constitution does not specifically identify the recognition of foreign governments among either Congress’s or the President’s enumerated powers. But in an opinion that employed multiple modes of constitutional interpretation, the Court concluded that the Constitution not only conferred recognition power to the President, but also that this power was not shared with Congress.

The Court’s analysis of recognition began with an examination of “the text and structure of the Constitution,” which it construed as reflecting the Founders’ understanding that the recognition power was exercised by the President.23 Much of the Court’s discussion of the textual basis for the recognition power focused on the President’s responsibility under the Reception Clause to “receive Ambassadors and other public Ministers.” 24 At the time of the founding, the Court reasoned, receiving ambassadors of a foreign government was tantamount to recognizing the foreign entity’s sovereign claims, and it was logical to infer “a Clause directing the President alone to receive ambassadors” as “being understood to acknowledge his power to recognize other nations.” 25 In addition to the Reception Clause, the Zivotofsky Court identified additional Article II provisions as providing support for the inference that the President retains the recognition power,26 including the President’s power to “make Treaties” with the advice and consent of the Senate,27 and to appoint ambassadors and other ministers and consuls with Senate approval.28

The Zivotofsky Court emphasized “functional considerations” supporting the Executive’s claims of exclusive authority over recognition,29 stating that recognition is a matter on which the United States must “speak with . . . one voice,” 30 and the executive branch is better suited than Congress to exercise this power for several reasons, including its “characteristic of unity at all times,” as well as its ability to engage in “delicate and often secret diplomatic contacts that may lead to a decision on recognition” and “take the decisive, unequivocal action necessary to recognize other states at international law.” 31

The Court also concluded that historical practice and prior jurisprudence gave credence to the President’s unilateral exercise of the recognition power. Here, the Court acknowledged that the historical record did not provide unequivocal support for this view, but characterized “the weight” of historical evidence as reflecting an understanding that the President’s power over recognition is exclusive.32 Although the Executive had consistently claimed unilateral recognition authority from the Washington Administration onward, and Congress had generally acquiesced to the President’s exercise of such authority, there were instances in which Congress also played a role in matters of recognition. But the Zivotofsky Court observed that in all earlier instances, congressional action was consistent with, and deferential to, the President’s recognition policy, and the Court characterized prior congressional involvement as indicating “no more than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power.” 33 The Court also stated that a “fair reading” of its prior jurisprudence demonstrated a longstanding understanding of the recognition power as an executive function, notwithstanding “some isolated statements” in those cases that might have suggested a congressional role.34

Having determined that the Constitution assigns the President with exclusive authority over recognition of foreign sovereigns, the Zivotofsky Court ruled that the statutory directive that the State Department honor passport requests of Jerusalem-born U.S. citizens to have their birthplace identified as “Israel” was an impermissible intrusion on the President’s recognition authority. According to the Court, Congress’s authority to regulate the issuance of passports, though wide in scope, may not be exercised in a manner intended to compel the Executive “to contradict an earlier recognition determination in an official document of the Executive Branch” that is addressed to foreign powers.35

While the Zivotofsky decision establishes that the recognition power belongs exclusively to the President, its relevance to other foreign affairs issues remains unclear. The opinion applied a functionalist approach in assessing the exclusivity of executive power on the issue of recognition, but did not opine on whether this approach was appropriate for resolving other inter-branch disputes concerning the allocation of constitutional authority in the field of foreign affairs. The Zivotofsky Court also declined to endorse the Executive’s broader claim of exclusive or preeminent presidential authority over foreign relations, and it appeared to minimize the reach of some of the Court’s earlier statements in Curtiss-Wright36 regarding the expansive scope of the President’s foreign affairs power.37 The Court also repeatedly noted Congress’s ample power to legislate on foreign affairs, including on matters that precede and follow from the President’s act of foreign recognition and in ways that could render recognition a “hollow act.” 38 For example, Congress could institute a trade embargo, declare war upon a foreign government that the President had recognized, or decline to appropriate funds for an embassy in that country. While all of these actions could potentially be employed by the legislative branch to express opposition to executive policy, they would not impermissibly interfere with the President’s recognition power.39

Footnotes

1

Memorandum for John Schmidt, Associate Attorney General, from Assistant Attorney General Walter Dellinger, re: Constitutional Limitations on Federal Government Participation in Binding Arbitration (Sept. 7, 1995); Memorandum for the General Counsels of the Federal Government, from Assistant Attorney General Walter Dellinger, re: The Constitutional Separation of Powers Between the President and Congress (May 7, 1996). The principles laid down in the memoranda depart significantly from previous positions of the Department of Justice. For conflicting versions of the two approaches, see Constitutional Implications of the Chemical Weapons Convention: Hearings on the Constitution, Federalism, and Property Rights Before the Senate Judiciary Subcommittee, 104th Cong., 2d Sess. (1996), 11–26, 107–10 (Professor John C. Woo), 80–106 (Deputy Assistant Attorney General Richard L. Shiffrin).

2

462 U.S. 919 (1983).

3

Although Chief Justice Burger’s opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of the decision to countermand the Attorney General’s application of delegated power to a particular individual. “Disagreement with the Attorney General’s decision on Chadha’s deportation . . . involves determinations of policy that Congress can implement in only one way . . . . Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” 462 U.S. at 954–55. The Court’s uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).

4

478 U.S. 714 (1986).

5

462 U.S. at 951.

6

Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (1992). Evidently, however, although Justices Kennedy and Souter joined this part of the opinion, id. at 579 (concurring in part and concurring in the judgment), they do not fully subscribe to the apparent full reach of Justice Scalia’s doctrinal position, leaving the position, if that be true, supported in full only by a plurality.

7

Morrison v. Olson, 487 U.S. 654 (1988). The opinion by Chief Justice Rehnquist was joined by seven of the eight participating Justices. Only Justice Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390–91 (1989), the Court, approving the placement of the Sentencing Commission in the judicial branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. Earlier, in Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987), the Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive power in appointing such counsel.

8

The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038.

9

478 U.S. at 732–33.

10

478 U.S. at 734.

11

462 U.S. at 985–86.

12

462 U.S. at 989.

13

478 U.S. at 736, 750.

14

462 U.S. at 953 n.16.

15

462 U.S. at 953 n.16.

16

Pub. L. No. 95-521, title VI, 92 Stat. 1867, as amended by Pub. L. No. 97-409, 96 Stat. 2039, and Pub. L. No. 100-191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.

17

Morrison v. Olson, 487 U.S. at 693–96. See also Mistretta v. United States, 488 U.S. 361, 380–84, 390–91, 408–11 (1989).

18

Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). It appears that in every prior instance where the Supreme Court considered executive action in the field of foreign affairs that conflicted with the requirements of a federal statute, the Court had ruled the executive action invalid. See id. at 2113 (Roberts, C.J., dissenting) ( “For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.” ); Medellin v. Texas, 552 U.S. 491 (2008) (President could not direct state courts to reconsider cases barred from further review by state and federal procedural rules in order to implement requirements flowing from a ratified U.S. treaty that was not self-executing, as legislative authorization from Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribunals convened by presidential order did not comply with the Uniform Code of Military Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized during quasi-war with France, when Congress had not authorized such seizures).

19

Foreign Relations Authorization Act, Fiscal Year 2003, P.L. 107-228, § 214(d), 116 Stat. 1350, 1366 (2002).

20

Zivotofsky, at 2082. The State Department’s Foreign Affairs Manual generally provides that in issuing passports to U.S. citizens born abroad, the passport shall identify the country presently exercising sovereignty over the citizen’s birth location. 7 Foreign Affairs Manual § 1330 Appendix D (2008). The Manual provides that employees should “write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.” Id. at § 1360 Appendix D.

21

Zivotofsky, at 2085 (quoting Brief from Respondent at 48).

22

Id. (quoting Youngstown Sheet & Tube Co., 343 U.S. at 637–38 (1952) (Jackson, J., concurring)).

23

Id. at 2084–86.

24

U.S. Const. art. II, § 3. Zivotofsky, at 2085.

25

Zivotofsky, at 2085–86. The Court observed that records of the Constitutional Convention were largely silent on the recognition power, but that contemporary writings by prominent international legal scholars identified the act of receiving ambassadors as the virtual equivalent of recognizing the sovereignty of the sending state. Id. at 2085.

26

Justice Thomas, writing separately and concurring in part with the majority’s judgment, would have located the primary source of the President’s recognition power as the Vesting Clause. Zivotofsky, at 2096–97 (Thomas, J., concurring and dissenting in part with the Court’s judgment). The controlling five-Justice opinion declined to reach the issue of whether the Vesting Clause provided such support. Zivotofsky, at 2086 (majority opinion).

27

U.S. Const. art. II, § 2, cl. 2.

28

Id.

29

Zivotofsky, at 2086.

30

Id. (quoting Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003), and Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 381 (2000)).

31

Id.

32

Id. at 2091.

33

Id. The Court observed that in no prior instance had Congress enacted a statute “contrary to the President’s formal and considered statement concerning recognition.” Id. at 2091 (citing Zivotofsky v. Secretary of State, 725 F.3d 197, 203, 221 (D.C. Cir. 2013) (Tatel, J., concurring)).

34

See id. at 2088. The Court observed that earlier rulings touching on the recognition power had dealt with the division of power between the judicial and political branches of the federal government, or between the federal government and the states. Id. at 2088–2089 (citing Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) (involving the application of the act of state doctrine to the government of Cuba and stating that “[p]olitical recognition is exclusively a function of the Executive” ); United States v. Pink, 315 U.S. 203 (1942) (concerning effect of executive agreement involving the recognition of the Soviet Union and settlement of claims disputes upon state law); United States v. Belmont, 301 U.S. 324 (1937) (similar to Pink); Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839) (ruling that an executive determination concerning foreign sovereign claims to the Falkland Islands was conclusive upon the judiciary)).

35

See id. at 2096. The Court approvingly cited its description in Urtetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692 (1835), of a passport as being, “from its nature and object . . . addressed to foreign powers.” See Zivotofsky, at 2095.

36

See United States v. Curtiss-Wright Export Co., 299 U.S. 304 (1936). For further discussion of this case, see supra Section 1. The President: Clause 1. Powers and Term of the President: Executive Power: Theory of the Presidential Office: The Curtiss-Wright Case.

37

The majority opinion observed that Curtiss-Wright had considered the constitutionality of a congressional delegation of power to the President, and that its description of the Executive as the sole organ of foreign affairs was not essential to its holding in the case. Zivotofsky, at 2090.

38

Id. at 2087.

39

Id. at 2087, 2095.