ArtII.S1.C1.1.1.2.1.3 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. Chadha ² 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 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 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-Wright ³⁶ 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