Executive Power Essentialism and Foreign Affairs
Bradley, Curtis A. & Flaherty, Martin S.
Citation analytics
How this journal article sits in the citation network, derived from CiteLaw's graph of published opinions.
Courts citing this journal article
Most recently cited by2
- 2026Refugee and Immigrant Center for Education and Legal Services v. Markwayne Mullin D.C. Cir.
- 2021Mr. Eddie I. Sierra v. City of Hallandale Beach Florida 11th Cir.
Counts reflect decisions in the CiteLaw corpus and may lag very recent opinions.
Abstract
Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity. It holds no less true for modern constitutions, including the Constitution of the United States. Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat.
It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism. One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which provides that "The executive Power shall be vested in a President of the United States of America," stands in apparent contrast with the Article I Vesting Clause, which provides that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . . " This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President a broad array of residual powers not specified in the remainder of Article II.
We will call this claim the "Vesting Clause Thesis."