Inherent Executive Power - Constitutional

Source

1. The Legislative Powers

   1. Article I, Sec. I: “All legislative powers herein granted shall be vested in the Congress of the United States” (vesting clause)

      1. Most important power herein granted = power to pass laws

         1. Framers’ intent: legislature as guardian of democracy, because it is the most democratic branch.

   2. Article I, Sec. 8 – Defines Congressional Authority

      1. Power to regulate Commerce among several states

      2. Power to establish a uniform Rule of Naturalization

      3. Power to promote the Progress and Science and Useful Arts

      4. Power to constitute Tribunals inferior to the Supreme Court

      5. Power to declare war – but does this really matter anymore? Only declared wars = I, II, Spanish American, 1812, Mexican-American

      6. “catch-all clause” – Necessary and Proper Clause

         1. The Power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers

         2. Compared to the powers given to the executive, this is a lot of power

2. The Executive Powers

   1. Article II, Sec. I – “The Executive power shall be vested in a President of the United States.” (vesting clause)

      1. Madison: if executive has inherent executive authority, then where is the balance? The Constitution claims that they are supposed to be balanced/limited, so it can’t be that the executive has powers that are not explicitly stated

      2. Framers’ Intent: Based on their experience with the Articles of Confederation, they had difficulty seeing a strong republic without a strong Executive Branch

   2. Article II, Sec. 2-3 Define Executive authority

      1. Power as Commander in Chief of the Military

      2. Power to make treaties and nominate and appoint cabinet officials, judges, and other inferior officers

      3. Power to take care and execute the laws

      4. Power to veto legislation (Art. I, Sec. 7)

3. The Judicial power

   1. Article III, Sec. I: “The 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.”

   2. Article III, Sec. 2 – gives the judiciary power over nine categories of cases and controversies

Neutrality Controversy: 1797, war broke out in Europe, England, and France. Washington wanted to declare neutrality unilaterally without congressional support. Critics say this was beyond his power.

1. Dispute over Art. II Vesting Clause

   1. Hamilton: democracies are inherently slow moving, especially in law making. County needs to react quickly to emergencies, like wars and natural disasters. We need strong, fast President. If Constitution doesn’t explicitly give authority, then sometimes we should be okay with taking authority anyways.

      1. Difference between Art. I and Art. II vesting clause demonstrates that the President also has other powers not laid out in Art. II.

   2. Madison: giving too much power to one branch will lead to tyranny. Concept of inherent powers in incompatible with Constitution that enumerates power of each separate branch. Says nothing about inherent powers in Executive.

      1. Madison’s notes: framers changed it from “power to make war” to “power to declare war”: suggests the power to “make” war lies with executive

Youngstwon Sheetmetal & Tube Co. v. Sawyer (1952) - The Korean war effort increased the demand for steel. Disputes arose between steel industry management and labor that culminated in an announcement of a strike by the union. President Truman authorized Secretary of Commerce Sawyer through Executive Order to take possession of the steel industry and keep the mills operating. He does this after asking, years ago, Congress explicitly stripped President of this power, and asking Congress twice (no response). President’s justification is the emergency state of the country.

1. Executive order = order president can unilaterally issue to act

   1. A lot of our administrative state operates under EO

   2. Idea is that there’s no need for congressional process in order to require internal actors to act.

   3. Using it this way is very aggressive

2. Congress didn’t explicitly say no because it is politically unsafe to push back on President in time of war

3. Truman’s alternative: order union to not strike, under a different statute (would have been a bad political choice)

4. Modes of Separation of Powers Analysis

   1. Mode 1 (formalist) – looks at the character of the action and attempts to identify whether it is judicial, executive, or legislative

   2. Mode 2 (functionalist) – focuses on whether any single branch has too much power or when a branch exercises power that infringes another branch’s ability to do its job

5. 4 Models of Executive power

   1. Model 1 (more formalist): The President may only act where there is Constitutional or statutory authorization (Youngstown majority)

      1. Principal argument for: inherent authority is incompatible with a Constitution of limited and enumerated powers

      2. Principal argument against: Congress is often slow and cowardly and the Constitution gives the President the power to act (vesting clause)

   2. Model 2 (more functionalist): The President may take any action not specifically prohibited by statute or the Constitution (Jackson, Frankfurter, and dissent)

      1. Principal argument for: Congress can still stop the President if it wants to

         1. Jackson, Frankfurter, dissent

      2. Principal argument against: It does not really offer much guidance about that second category, which is where most of the action is

   3. Model 3 (more formalist): The President may act even without authorization from Congress so long as he doesn’t (a) usurp legislative responsibilities or (b) interfere with it performing its duties (Douglas)

      1. Principal argument for: there are some things that the Constitution does not spell out, but which the President needs to be able to do

      2. Principal argument against: it is hard to define when the executive is usurping a legislative responsibility or when he is interfering with it

   4. Model 4: The Executive has broad inherent authority that may not be restricted by Congress, and only held in check by the Constitution (Curtiss-Wright)

      1. Principal argument for: this type of unfettered executive power is what we need in emergencies

      2. Principal argument against: inherent executive authority is contrary to the very notion of a written constitution

6. Concurrence- Jackson’s Tripartite Framework – applies under model 2

   1. Category 1 – President’s authority is at its maximum when he acts pursuant to authorization from Congress

   2. Category 2 – President’s authority is in “twilight” when he acts in the absence of congressional action. Most actions fall within this zone. Fact specific determination.

   3. Category 3 – President’s authority is at its “lowest ebb” when Congress has explicitly or implicitly told him not to do what he’s doing

7. Concurrence – Frankfurter: a “systematic, unbroken presidential practice” can be a source of constitutional authority.

1. Executive privilege

   1. the power of the President to keep secret certain conversations between senior advisors and the like.

   2. Not in Constitution

   3. Pros

      1. Need to protect sensitive information

         1. Importance of the president and his advisors speaking to each other freely and with candor

      2. Separation of powers – formalist account – privilege derives from the supremacy and independence of each branch within its own assigned areas of constitutional duties

   4. Cons

      1. Need for transparency in government activity

      2. Need for other branches to be able to do their job in investigating and adjudicating actions of the President and his advisors

   5. United States v. Nixon (1974) - Nixon asserted that he was immune from the subpoena for wiretapped recordings in Grand Indictment.

      1. Held: Berger: neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege.

      2. Balancing Test: weigh importance of 1) general privilege of confidentiality of Presidential communications in performance of President’s responsibilities against 2) inroads of such a privilege on the fair administration of criminal justice.

         1. Generalized interest in confidentiality, here, cannot prevail over fundamental demands of due process of law in fair administration of criminal justice

2. Legislative privileges

   1. Source: Article I, Sec. 6

      1. “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The Executive and Foreign Affairs

1. The Legislative Authority

   1. Article I, Sec. 8

      1. Power to regulate Commerce with foreign Nations

      2. Power to define and punish Piracies and Felonies committed on the high Seas; and Offenses against the Law of Nations

      3. The power to declare War, grant Letters of Marque and Reprisals, make Rules concerning Captures on Land and Water

2. Executive Power

   1. Article II, Sec. 2

      1. Commander in Chief of Army and Navy

      2. Power, by and with Advice and Consent of the Senate,

         1. to make Treaties

         2. Appoint ambassadors

3. Difference between foreign affairs and domestic affairs (Curtiss-Wright)

   1. Federal government foreign affairs powers are a “necessary concomitant of nationality.”

   2. The “investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution.”

   3. Domestic powers were carved out from powers of the states, but the states severally never possessed international powers, so federal government ...