Sovereign Power and the Sweeping Clause

by John Mikhail

Abstract

The powers delegated to the United States by the Constitution include implied corporate powers, implied national powers, and other incidents of national sovereignty. Northern Federalists such as James Wilson, Gouverneur Morris, and Alexander Hamilton were entirely comfortable with this broad reading of the Constitution, but James Madison and other Southern Federalists were not, and by means of artfully-worded ratification instruments, proposed amendments, liquidation, and other devices, they sought to limit these implied powers in order to protect domestic slavery. While these initial efforts were unsuccessful, they spawned a persistently enumerationist theory of the Constitution, along with a novel conception of the separation of powers, in which every power delegated to the United States by the Constitution is presumed to be legislative, executive, or judicial—a critical premise of, inter alia, the Virginia Form of Ratification, Madison’s proposed Tenth Amendment, Hamilton’s first Pacificus essay, and the unitary executive theory.  This “no other government powers” understanding of the separation of powers, however, is at odds with the precise language of the Sweeping Clause, which distinguishes the powers vested in the Government of the United States from the powers vested in Congress, the President, or other Departments of Officers of the United States, and which encompasses incidents of national sovereignty within the former category of powers. After recounting this founding-era history, this Essay considers some of its most salient implications, focusing on four topics in particular: modern separation of powers disputes, the original design of the American presidency, the unitary executive theory, and two landmark cases involving incidents of national sovereignty, Missouri v. Holland (1920) and United States v. Curtiss-Wright Export Corp. (1936).