[rayiner]

That’s like saying “general and special relativity” is a “theory.” Technically correct but misleading.

Articles I, II, and III, have nearly identical clauses vesting the legislative, judicial, and executive power, respectively, in Congress, the President, and the Supreme Court.

Does anyone think Congress can create a law that enables the legislative or judicial powers to be exercised by employees independent of the control of the constitutional actors in which those powers are vested? It would be madness to say that Congress can create a law creating an entity in the judicial branch that can adjudicate cases without oversight from an Article III judge. Nobody thinks that’s true.

[dctoedt]

> Does anyone think Congress can create a law that enables the legislative or judicial powers to be exercised by employees independent of the control of the constitutional actors in which those powers are vested?

Yes.

Apart from the specific enumerated executive powers in Article II, Sections 2 and 3, the "executive power of the United States" is whatever the Congress says it is. If Article II Section 1 had been intended as a preemptive, unitary-executive grant, there'd have been no reason to enumerate specific powers.

As has been remarked, there's a reason Article I (concerning Congress) comes first.

[rayiner]

Article II says: “The executive Power shall be vested in a President.” Congress can give the executive more or less power through law, but whatever executive power it does create must ultimately be invested in the president, not someone else.

[shakna]

The Force is also available to both Jedi and Sith alike. The use of a 'the' nomenclature is not indicative that the subject is solely available to a singular individual, only that the power is available.

In Commonwealth Nations "the Crown" has ultimate deciding power, however "the Crown" simultaneously refers to functions of the executive, legislative (parliament), and judicial (Supreme Court and others), governance and the civil service. A Crown Prosecutor is equally known as "the Crown", as the monarch. Both are two very different individuals, but possess the same power, and use "the" nomenclature.

[rayiner]

> The Force is also available to both Jedi and Sith alike. The use of a 'the' nomenclature is not indicative that the subject is solely available to a singular individual, only that the power is available.

In your construction, all the work is being done by your use of the word “available.” But the constitution doesn’t say “the executive power is available to the President.” It says: “The executive Power shall be vested in a President of the United States of America.” The word “vested” means “secured in the possession of or assigned to a person.” So the executive power isn’t merely available to the President. It’s assigned to and given to the possession of the President.

Your Crown example actually proves the opposite of your point. That phraseology reflects the traditional british notion that all executive power is vested in the king, who is the chief prosecutor but may act through delegates: https://digital.sandiego.edu/cgi/viewcontent.cgi?params=/con... (p. 1707).

[dctoedt]

> In your construction, all the work is being done by your use of the word “available.”

In your construction, all the work is being done by "the." OK, let's play the same game, this time with the word executive: Suppose that Congress, using its authority under the Necessary and Proper Clause, creates separate governmental agencies — not subject to plenary presidential supervision — and gives those agencies the power to carry out specified tasks. You're complaining that this falls within the definition of "executive" power and thus must be presidentially supervised. The obvious response is: OK, we won't call it "executive" power, we'll call it something else. Word games? Sure, but that's what you're doing.

But, someone might respond, the term "executive power" must be interpreted today as it supposedly was understood by the Framers in 1787. That ipse-dixit contention is purely a matter of what Justice White aptly referred to in Roe as "raw judicial power" — and recall that after Dred Scott, a more-extreme version of such a contention was finally resolved at Appomattox as the culmination of four years of bloody civil war.

[shakna]

In my construction, all the work is done by an alternative interpretation of "the".

The Crown example still works as the Parliament is not selected by the monarch. It is not elected by the monarch. The monarch does not possess the power to reject them. Yet, the Parliament are still referred to as "the Crown", and possesses the executive power of the Crown.

Equally so, the Governor General of any Commonwealth Nation is free to reject the orders of the monarch, as they possess the executive power of the Crown. The monarch is also free to fire them for doing so, as the monarch also has the power of the Crown. Both are on equal footing. In the words of Whitlam "Well may we say God save the Queen, because nothing will save the governor-general."

Multiple people have possession of the executive power in such systems, even though the word "the" is used to refer to it. That alone is not enough to indicate that a singular individual controls it.