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Andy Boyer's avatar

Pretty interesting that Scalia cites Myers for the dissenting proposition in Nasco that Congress may make rules about the implementation of inherent Judicial power so long as those powers are not impaired. I think his dissent in Morrison notwithstanding, he was far more often on the side of Congressional Supremacy. See e.g., Zivitovsky (Scalia, J. dissenting). Essentializing the branches may lead to better practical outcomes for the Judiciary, but it's certainly not Constitutionally compelled.

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Tim Raben's avatar

I'm curious how the authors (or this blog) feels about the recent discussions about "vest" vs "appropriate" at the founding. With the court rapidly embracing a unitary executive theory and more slowly embracing a unitary judiciary (e.g., CASA) I'm curious if this seemingly important distinction will ever bear any weight.

The full discussion is now in a blog post at the Yale Journal of Regulation (https://www.yalejreg.com/nc/vesting-v-appropriating-in-the-constitution-by-shalev-gad-roisman/) but the short version appears a toward the end of the post:

"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."

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Patrick Aris's avatar

Sorry if this is a naive question, but could the relevant difference have to do with who is doing the vesting or appropriating? That is, the Constitution vests — a singular, totemic grant of power by the supreme law — while Congress (and other actors who have been vested) appropriate, exercising discretion within the limits the Constitution sets for them?

I don't know — would love to hear your thoughts.

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Tim Raben's avatar

That could certainly be a distinction, but I'm not sure there is any evidence that's what people thought at the time (hence why I'm asking here). It sure seems to me that if that is the explanation now, without an historical record, then it's just people trying to force the words into a unitary exec/judiciary/congress that they want for policy reasons.

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Randy Marks's avatar

I am a retired antitrust attorney so this question may be hopelessly naive.

Why doesn't the 5th Amendment guarantee of due process for deprivations of liberty or property provide any federal court with the authority to enjoin whatever it wants regardless of statutory authorization?

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