This blog post draws an unlikely—but potentially quite important—connection between Congress’s power to “appropriate” and the three “vesting” clauses of the Constitution.

It is an axiom of separation of powers formalism that the grants of executive, legislative, and judicial powers to the three branches are “exclusive.” Exclusivity on this view is meant to convey that, if the Constitution grants a power to one branch, that branch is the only branch to possess anything that falls under that grant of power. Thus, if one branch has power to do something, then, by implication, no other branch has such power.[1]  This notion of exclusivity derives from an interpretation of the Constitution’s three Vesting Clauses.[2]  The idea is that the Constitution would not bother to “vest” “executive,” “legislative,” and “judicial” powers in three separate branches, if it was not meant to symbolize an exclusive grant of such power. 

This exclusivity conceit forms the basis for how formalists typically address disputes between Congress and the President—they find which branch has “exclusive” power over the matter at issue, and that branch must prevail.[3]  This method has been and will continue to be used to resolve various hot-button disputes, including over the constitutionality of independent agencies, presidential immunity, and much more.

What does any of this have to do with Congress’s appropriations power?

In an entirely separate clause, the Constitution specifies that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. Art. I, §9, cl. 7.  Last year, in Consumer Financial Protection Bureau v. Community Financial Services Association of America, the Court confronted what precisely the word “Appropriation” means. 

Writing for a 7-2 majority, the leading formalist and originalist on the Court, Justice Thomas, explained matter-of-factly that “[a]t the time the Constitution was ratified, ‘appropriation’ meant ‘[t]he act of sequestering, or assigning to a particular use or person, in exclusion of all others.’” (quoting 1 N. Webster, An American Dictionary of the English Language (1828))(emphasis added).  

As I was reading this opinion, I was struck by the fact that this is the precise meaning formalists have tended to ascribe to the word “vest.” Compare Justice Thomas’s description of the Vesting Clauses in his concurrence in Department of Transportation v. Association of American Railroads, 575 U.S. 43, 67-68 (2015) (Thomas, J., concurring):

The Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1, “[t]he executive Power shall be vested in a President of the United States,” Art. II, §1, cl. 1, and “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1.  These grants of power are exclusive. When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.

This all raises a simple question: If the word “appropriate” means the “act of … assigning to a particular … person, in exclusion of all others,” and the Constitution’s grants of power are meant to signify such exclusivity, then why didn’t the Constitution use the word “appropriate” instead of “vest” when it granted powers to the three branches?  Why isn’t there an Article II Appropriations Clause, rather than a Vesting Clause? “The Executive Power shall be appropriated to a President of the United States of America” has a nice ring to it.

What might the vesting clauses mean, if they were not meant to be exclusive grants of power? The other way to read them would be that they meant to grant powers to distinct actors, without specifying whether and when such powers are exclusive or overlapping.[4]  These grants of power might have been meant to allocate tasks to different actors—Congress should legislate, the President should execute, the courts should adjudicate—without definitively settling whether and when the allocated powers overlap. This reading has the benefit of easily accommodating the fact that the Constitution allocates numerous overlapping powers to the branches.[5]  To be clear, this has always been an available reading of the Constitution (and one that I confess I am inclined toward). Perhaps the fact that the drafters of the Constitution had a word available to them that connotes exclusivity and did not use it when they granted powers to the branches might support this reading.

Now, why the Constitution used the word “vest” instead of “appropriate” is not a topic I have studied; nor is this sort of hypertextual argument one that I am naturally drawn to. Perhaps there is a simple explanation for it. But it seems to me that this is a question worth grappling with, particularly if formalism continues to be the dominant mode of resolving separation of powers disputes on the Supreme Court and, particularly, if textual arguments of this sort continue to be emphasized.  Why did the Constitution use the word “vest” instead of “appropriate,” if it meant to allocate “exclusive” powers to each of the branches?  I, for one, would be interested in knowing the answer.

Shalev Gad Roisman is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law. He can be reached at sroisman@arizona.edu.

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[1] See, e.g., Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 Sup. Ct. Rev. 225, 231-32 (1991).

[2] See, e.g., id. at 232; Gary Lawson, Territorial Government and the Limits of Formalism, 78 Calif. L. Rev. 853, 857-858 (1990); Steven Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377, 1390 (1994).

[3] For elaboration, see, e.g., Shalev Gad Roisman, The Limits of Formalism in the Separation of Powers, 16 J. Legal Analysis 178, 181-82 (2024); Shalev Gad Roisman, Balancing Interests in the Separation of Powers, 91 U. Chi. L. Rev. 1331, 1352-53 (2024).

[4] Formalists have frequently acknowledged that some powers they describe as “exclusive” are, in fact, overlapping, but they have suggested such examples are “limited” in scope. See Roisman, Limits, note 3, at 182-83.  Formalists have never adequately explained, however, how it is possible that purportedly “exclusive” powers could ever overlap. For work directly addressing this issue, see, e.g., Philip Hamburger, Nondelegation Blues, 91 Geo. Wash. L. Rev. 1083 (2023); Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735 (2022); Shalev Gad Roisman, What Are ”Exclusive” Powers? (work in progress).

[5] See, e.g., Roisman, Limits, supra note 3, at 188-91 (discussing examples).