From Thomas Nielsen, a federal law clerk, and Luiza Leão, who just completed a federal clerkship and is an incoming appellate litigation associate at a large law firm.
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.
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.
"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."
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.
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."