Presidential "Inherent [Constitutional] Authority": what's the legal meaning of this?

Factual Questions
1

If there’s already been a GQ thread on this, my apologies; I searched the forum for ‘inherent’ and none of the thread titles that came back seemed to have any relevance.

It’s old news that the President has claimed ‘inherent’ power under the Constitution to conduct domestic wiretaps outside of FISA. But aside from the paticulars of this debate, what does ‘inherent authority’ mean? I get different pictures of it in different discussions.

It doesn’t seem to mean authority spelled out in so many words in the Constitution. The Bush Administration seems to use it in a way that suggests powers that Congress has no right to limit, but others seem to imply that ‘inherent’ Executive powers are those that Congress could regulate, but hasn’t. And when one considers the entire description of Presidential warmaking powers in Article 2 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”) one certainly has to wonder what sort of “penumbras” and whatnot are involved in such “inherent” powers. And what have the courts said about Presidential “inherent authority”?

So, Doper legal eagles: what’s the Straight Dope on “inherent authority”? Help me out here.

2

JFTR, I’ve read Justice Jackson’s breakdown of Presidential powers in Youngstown:

Does Executive “inherent authority” have a place in this framework? If so, what is its place?

3

Here’s Dr. Cass Sunstein’s take on it. Dr. Sunstein is a professor at the University of Chicago Law School.

Basically, the idea behind “inherent authority” comes from a case called Youngstown v Sawyer. In order to stop a strike at a steel mill, which he was afraid would hurt the war in Korea, Truman nationalized the steel mills temorarily by executive order. This was done in direct violation of a law that said that the President couldn’t sieze private buisinesses without the consent of Congress. The Supreme Court ruled that Truman’s order was unconstitutional. But in the decision, Justice Jackson wrote a concurence, where he looks at the different levels of legality of presidential actions. Here’s the test:

4

Youngstown is the most significant treatment of the subject. But I think the OP is asking a different question, namely, where does it come from at all?

There are two related sources for this. The first is in the nature of a sovereign as set out in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Any goverment, as part of the nature of governments generally, have certain indisputable powers. This includes the power to make war and conduct foreign affiars – the ability to do this is part of how we define sovereignity. Therefore, the Untied States, as a sovereign, must have this power somewhere, regardless of whether it’s spelled out in the Constitution. And as the “sole organ of the federal government in the field of international relations,” these powers are vested in the President. Curtiss-Wright, 299 U.S. at 320.

The second basis for inherent presidential power is in the nature of executive power. The Founders weren’t writing on a clean slate – they were establishing a government based on the government of England but with imposed limits. For instance, in Art. I the Constitution invests the legislative power in the Congress and describes its operation and powers in great detail. In Art. III, the Constitution invests the judicial power in the Supreme Court and such other courts as Congress may establish but it defines the operation of the courts almost not at all. It wasn’t necessary, because the Founders knew what courts did. So Art. III didn’t need to detail the operation of the courts, it simply needed to establish and invest them. The contrast to Art. I is significant because Congress under the Constitution was a very different creature than Parliament, which has no such limits on its power.

Art. II, investing the Executive Power in a president, splits the difference. It’s by no means as detailed as Art. I, but it has somewhat more than Art. III. The argument in favor of innate presidential authority says that the Founders understood Executive power the same way they understood Judicial power. And by not limiting the presidential powers in Art. II as they did the Congress’s in Art. I, the Founders intended the president to inherit the Executive power of the Crown, to the extent consistent with other constitutional provisions. The same way they intended the Judiciary to have the same powers as England’s courts, but did not intend the textually limited Congress to have the same powers as Parliament. (With the exception that the president’s term of office is measured in years, not in lifetimes.)

Speaking for myself, I tend to buy these arguments. Certainly, it seems to me, some entity or other needs to have powers to conduct foreign affairs, even in the absence of direct Congressional authorization, becuase it’s crucial in emergencies. Moreover, the absence of a potent Executive is the deficiency in the Articles that the Constitution was meant to abate. And I agree that when the Founders wrote the Constitution, they knew what the words “legislative,” " executive," and “judicial” meant, and they used them to describe a panoply of rights and responsibilities that everyone understood. Of course, we fought a revolution to get rid of the English government, but that’s why the Constitution was able to establish institutions of power as modified from the English model. Ergo, where the Constitution doesn’t modify such institutions, they are what the Founders understood them to be from English legal history.

That said, in my opinion, President Bush’s contentions about the unitary Executive are unsupportable. Though the president has considerable inherent power in my view, this power evaporates in the face of contrary constitutional provisions. Therefore, he does (again IMO) not have the power to violate, inter alia, the Bill of Rights or the right to Trial by Jury in Art III, Sec. 2, as he claims he does.

I realize this last bit was far afield. However, I feel that it’s important for a full understanding of this question that people who read this response recognize that even amongst the many of us who recognize inherenet Executive authority, this president is still making extraordinary claims.

–Cliffy

5

Thanks, Cliffy, for an illuminating response. It makes sense to me that, as you say, “the Founders intended the president to inherit the Executive power of the Crown, to the extent consistent with other constitutional provisions.” My assumption, based on the usual so-so knowledge of American history, would be that the Founders didn’t see a need to specifically limit the Executive’s powers in Article II in the manner that they limited Congress’ because they figured that the other two branches had sufficient powers to limit the Executive.

I’m still curious as to where Presidential inherent authority falls in Justice Jackson’s tripartite division. ISTM that you would regard that authority to be the sum of Jackson’s second and third categories. Would that be correct - and would that be standard usage as well? ISTM that the Administration is using the term synonymously with Jackson’s third category alone, as various persons speaking for the President have described the President’s inherent authority as immune to acts of Congress and the signing of bills into law: as Assistant AG Moschella says in answering FISA-related Congressional questions here (see Q.5), “Just as one President may not, through signing legislation, eliminate the Executive Branch’s inherent constitutional powers, Congress may not renounce inherent presidential authority.”

One thing I’m wondering about in the current debate is whether statements about the breadth of inherent Presidential authority made in the past, but based at least in part on inclusion of Jackson’s second category, are being used to support a claim of breadth for inherent Presidential authority based on Jackson’s third category alone.

CA, I found Sunstein’s article somewhat frustrating: while she’s operating in the context of Jackson’s opinion, she never really pinpoints where inherent Executive authority lies within his structure, seemingly bouncing back and forth between his last and first(!) categories. (Exclamation because ISTM there’s nothing ‘inherent’ about power that a President has only if Congress gives it to him.)

AFAICT, her arguments 1 and 4 are arguments on opposite sides of whether a power falls into Jackson’s third category, her arguments 2 and 3 are on opposite sides of whether a power falls into Jackson’s first category, and her arguments 5 and 6 are the same as 2 and 4, only with the intent of avoiding a decision on Constitutional grounds by deciding on statutory grounds instead.

6

Cass Sunstein is a man, baby. :cool:

7

:smack:

Does he have any kids? I hope they call him “Daddy Cass.” :stuck_out_tongue:

8

Beyond Youngstown, Captain Amazing’s summary, the link to the Sunstein column and Cliffy’s superb analysis, I don’t think that there is much more that we can say about the question in the context of General Questions.

I don’t think that anyone would dispute that the G.W. Bush administration has taken a more aggressive stance on inherent presidential authority than any prior administration. As far as I can tell, they have not made clear exactly how their aggressive stance fits within the contours of existing precedents in the area. I do not believe that we can give any further factual answers as to whether the arguments made by the administration are legally founded as this is a matter of considerable political debate which will probably only be resolved by future Supreme Court cases.

9

I strongly agree with Cliffy, and he hit the nail right on the head in his last three paragraphs. President Bush has made sweeping claims to power that I hope will not survive his administration - but which may be cited, by a more tyrannical and/or power-hungry president, in years to come. Very troubling.

In 1956, political scientist Clinton Rossiter wrote in The American Presidency that “the President is not a Gulliver immobilized by 10,000 tiny cords, nor even a Prometheus chained to a rock of frustration. He is, rather, a kind of magnificent lion who can roam widely and do great deeds so long as he does not try to break loose from his broad reservation.”

That reservation is the Constitution, and IMHO this President is trying to jump the fence just about every chance he gets.

10

You’re right - I should have left that out of my post, given the forum.

Pre-Bush, was there a legal consensus on how inherent Presidential authority fit into Justice Jackson’s framework? That’s my principal remaining (general) question right now.

11

You have to be joking. A more or less permanent feature of our government is tension between legislative and executive authority.

12

:confused:

This is a factual question (which is why it’s in GQ) which has nothing to do with the tension between the two branches. Let’s review the bidding:

  1. The concept of inherent Executive authority has apparently been with us for a good long while now. The term “inherent authority” has even got some history.
  2. That suggests that people thought they knew what it meant, more or less.
    2A) Not how far inherent Executive authority extends, necessarily, which is the subject of the inter-branch tension that you refer to. My question does NOT directly pertain to that. Just: here’s this term, what’s its definition, where does it fit into Justice Jackson’s framework?
  3. CA, Cliffy, and Billdo all seem to say there’s a connection between inherent Executive authority and Jackson’s framework. I’m trying to get one or more of them to say what the connection is (or was, pre-Bush) understood to be.
13

I don’t think I understand your question, RT, but here’s a shot. Justice Jackson’s framework suggested three categories under which the president sometimes acts. Clearly, since in only one of those categories he acts with Congressional authority, he acts legally in the other categories if and only if he has inherent power. Justice Jackson did not define precisely how much innate power the president has. It seems obvious to me how the notion of inherent authority fits into the Youngstown framework, so I think you must be asking something else.

–Cliffy

14

Yeah…what Cliffy said. Inherent authority is the authority the president has just by virtue of being the president, vs the authority the president has because Congress has passed a law giving him powers to do something.

So, for instance, the Constitution says that the President is Commander in Chief of the armed forces. This is part of his inherent authority as President. Congress doesn’t have to pass a law saying that the President is Commander in Chief in order for him to be CinC.

Now Presidents also have power under Congressional legislation. Congress can pass a law saying “The President shall have the power to do X”.

What happened in the Youngstown case is that Congress had passed a law saying, in effect, “The President can’t seize private property in an emergency without the consent of Congress.” President Truman said, “I’m going to seize these steel mills anyway. If there’s a strike, it’ll hurt the war in Korea, and the Constitution gives me the inherent power, as Commander in Chief, to take emergency actions like this one that are neccesary to win the war.”

The Supreme Court told him he was wrong and that the Constitution didn’t give him that right. But Justice Jackson got to thinking, and asked himself the question, “How do we know whether a Presidential action is Constitutional or not?”

Justice Jackson decided that there are three different sorts of circumstances under which a President can act. First, he can take actions that Congress has authorized him to do by law. In that case, since the President and Congress agree, the only way that the President’s action can be unconstitional is if it’s something the Federal Government isn’t allowed to do, and the burden of proof is on the people challenging the action to show that the action is unconstutional.

Secondly, he can do something that Congress hasn’t written a law about period…something that Congress hasn’t told him to do, but at the same time, hasn’t forbidden. In that case, it’s sort of a grey area, and it’s not so much a matter of law but a matter of politics…basically, it’s up to Congress to decide if they’re going to notice and care.

Thirdly, he can do something that Congress has told him he can’t do (like in the Youngstown case), and in that sitution, the burden of proof is on the President. The President has to prove that he has the power to do it according to the Constitution and that Congress doesn’t have the constitutional power to stop him.

That make sense?

15

No, that’s exactly what I was asking: whether a President’s ‘inherent authority’ coincided with Jackson’s second and third categories, or just the third.

So if the question is whether Congress has the authority to pass legislation restricting a President acting under his inherent authority, the correct answer is therefore “Sometimes,” rather than a flat “No.”

Thanks, all of you, for the education. :slight_smile:

16

Well, no, the answer would be “No”, wouldn’t it? If the Constitution gives the President the power to do something, then Congress can’t constitutionally pass a law saying he can’t. A law saying, “The President may not pardon someone without the consent of Congress” would be unconstitutional.

It’s just that, under Jackson’s framework, you don’t have to worry about whether or not the President has the inherant authority to do something unless Congress is silent or opposed to the action.

17

In that case, unless I’ve totally misread him, you disagree with Cliffy.

He’s saying that the President’s “inherent authority” applies to Justice Jackson’s second and third categories - the one where the President has authority to act because Congress has heretofore been silent, and the one where the President has authority under the Constitution to act, regardless of what anyone else does.

No legislation can affect the President’s inherent authority in the latter case, but it CAN limit the President’s inherent authority in the former case, by reducing the zone of Congressional silence. Hence ‘sometimes.’

If you’re saying ‘inherent authority’ coincides only with Jackson’s third category, then ‘No’ would be the correct answer under that definition of inherent authority. But then it would appear that ‘inherent authority’ is an exceedingly poorly-defined concept, since you guys can’t agree on a simple thing like whether or not it refers in part to Jackson’s second category.

18

OK, this has been a tough response to savvy out, but I think I’ve got it.

I believe you’re viewing things backwards from where they’re normally seen. In Jackson’s 2d category, the president doesn’t derive his authority from Congressional silence. The president derives the authority from his Office, as in all cases of inherent authority. I don’t think it’s appropriate (or at least not common) to think of a newly-roused Congress as circumscribing the president’s authority in a Cat. 2 situation. Rather, Congress is challenging it. In Cat. 3, if it ever exists, the president has juice regardless of Congress’s actions, but in Cat. 2, two branches enter, one branch leaves.

So it’s wrong to say the president’s inherent authority “applies” to any of Jackson’s categories. The president’ inhernet power, whatever it may, is always what it is. It’s just there are (theoretically) areas in which the president’s will is subordinate to that of Congress because it’s there ballpark, there are areas in which the president can tell Congress to go jump, because it’s his bailiwick, and then there are areas in which the Congress can choose to arm-wrestle for it if they don’t like the presiden’t plans.

It’s not that the president’s power changes in any instance. What powers he has, he has. It’s just a matter of when that power is strong enough to fight off Congress or merely strong enough to act as long as it isn’t in direct contravention.

Crud. I have no confidence that this post is at all worthwhile.

–Cliffy