Article 2, Section 1, Clause 1: Executive Vesting Clause

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:

The Executive Vesting Clause is the counterpart of the Legislative Vesting Clause (Article 1, Section 1) and the Judicial Vesting Clause (Article 3, Section 1). These three clauses are the basis for the constitutional doctrine of the separation of powers.

Separation of powers is intended to address the concern over simple government voiced by John Adams, and which we have quoted before:

Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy. It is not true in Fact and no where appears in history. Those Passions are the same in all Men under all forms of Simple Government, and when unchecked, produce the same Effects of Fraud Violence and Cruelty.

James Madison also used this language:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

We understand simple government to mean government by a single body, whether of an individual autocrat, an oligarchy, or even the united body of all citizens. The Framers chose a complex government, modeled after the Roman Republic, in which the powers of government were spread over separate bodies. The President is a different body than Congress, and both are separate from the judiciary; three separate bodies exercise separate powers of legislation, execution, and judgment.

We are indebted to Justice Gorsuch for a further insight: Each branch is dominant in a separate temporal scope. Congress is, or should be, focused primarily on the future. It is expressly forbidden to pass ex post facto laws, so its enactments have power only over future actions. This is not to say that Congress should not be mindful of current events, nor fail to study the lessons of the past, but it should do so with the intent of altering the future course of government.

The judiciary likewise focused on the past. It judges matters that have already taken place. It is one with this focus that courts are scrupulous about not giving judicial opinions on matters not actually before them. Neither Congress nor the President are within their rights to consult the judiciary on how they might rule on the law in a given situation, because this would be prospective. Nor should courts set precedent based primarily on the anticipated future effects of their rulings, as if they were a legislature. They should respected past precedent and the understanding of the law as it was at the time a matter before them took place. If Congress were to pass a resolution telling the courts how they should interpret a past statute, the courts would be right to ignore the resolution. We adhere to the doctrine of public meaning textualism, which is the theory of law that holds that cases should be decided according to how a statute would have been understood by the public at the time of enactment, assuming of course that the public understood the terms of art used in statutes at the time.

The president is temporally focused on the present. He acts in the now. This is the very essence of executive power. It also confers on the presidency a natural political advantage, requiring both Congress and the courts to be jealous of their own prerogatives. The courts, so far, have been reasonably good at this. Congress has, in our view, grossly neglected its responsibilities in this matter, and allowed the presidency to pushed its natural advantage, to the detriment of the constitutional order, for most of the past few decades.

We will have more to say on all these points as we examine the specific clauses of Article II.