Presidential Powers

• Author: Philip B. Kurland
• Pages: 1995-2000

Page 1995

The powers of the American presidency are amorphous and enormous. Perhaps they can be defined only by saying that they are made adequate to the problems to which the power is addressed. Although these powers purportedly derive from the specifications of the Constitution itself, in fact their definition is to be found in the behavior of the American Presidents since 1789. During this time the executive branch, largely with the acquiescence of Congress and the encouragement of the Supreme Court, has come to resemble the monolithic authority to be found in governments that have succeeded to the authority of czars and emperors. LIMITED GOVERNMENT is now constitutionally limited only by the first eight Amendments and Article I, section 9, and even then only at the discretion of the Supreme Court.

The reason for the accumulation of power in the presidency is not hard to find. Power goes to the official who can use it. It is easy for the President to be that official because, as Justice ROBERT H. JACKSON wrote in YOUNGSTOWN SHEET & TUBE CO. V. SAWYER (1952):

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

The doctrine of SEPARATION OF POWERS, not to be found in terms in the Constitution, has receded to the vanishing point so far as the presidency is concerned. And the principle of CHECKS AND BALANCES, intrinsic in the Constitution as a whole, has also been diminished when it comes to putting restraints on the President.

Essentially there are two conflicting theses on the powers of American Presidents, depending in large part on whether it is believed that the opening words of the Second Article: "The Executive power shall be vested in a President of the United States," is itself a grant of power or, as was the case with Articles I and III, is simply a designation of the office with the powers of that official to be found in the provisions that followed. In sum, the question is whether everything that comes after the first sentence in Article II is a redundancy so far as presidential powers are concerned. A reading of the origins of the article would clearly deflate the concept of a presidency replete with the royal prerogatives that the nation had so roundly condemned in the DECLARATION OF INDEPENDENCE itself.

Even the view taken by THEODORE ROOSEVELT, however, is not so broad as to leave no need for separation of powers. Roosevelt asserted "that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its Constitutional powers." Roosevelt's immediate successor

Page 1996

in office, WILLIAM HOWARD TAFT, had espoused a different reading: "The true view of the executive function is ? that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such grant as proper and necessary." Taft's was the better reading of the origins of the constitutional provisions, although even he later turned to the Roosevelt reading when he was on the Supreme Court. But Roosevelt's was the better reading of the history of the presidency and a better prediction of what the presidency was to become.

The last important Supreme Court opinion on presidential powers, perhaps because it was one of the few outside the area of CIVIL LIBERTIES that rejected a presidential reach for power beyond his grasp, came in 1952 in the Steel Seizure Case. There the Court was thoroughly divided. The dissenters, led by Chief Justice FRED M. VINSON, read the INHERENT POWERS of the presidency as all but limitless, in keeping with the construction given by most political scientists. Justice HUGO L. BLACK went to the other extreme in his opinion for the Court. For him the chief magistrate had only those powers specifically provided by the terms of the Constitution and those powers properly conferred upon him by Congress. But of all the opinions in Youngstown, the one most often looked to by constitutional lawyers, including those sitting on the Court, has been that of Justice Robert H. Jackson, for whom there was no plain rule but rather a sliding scale:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.?

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures of independent presidential responsibility. In this area, any test of power is likely to depend on the imperative of events and contemporary imponderables rather than on abstract theories of law.

When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon its constitutional powers minus any constitutional powers of Congress over the matter.? Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Jackson concluded his opinion, saying: "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be the last, not first, to give them up."

The concept of the RULE OF LAW continues to diminish as the nation embraces first the description in CLINTON ROSSITER'S Constitutional Dictatorship, and then that of Arthur Schlesinger in his Imperial Presidency. We continue, however, to parse the sentences of the Constitution in order to justify or oppose presidential authority. But there is less reality in this exercise as each day succeeds the next.

The catalogue of presidential powers specifically stated in the Constitution is neither long nor extensive. He is given a conditional power of veto of all legislation, subject to being overridden by a two-thirds vote of each house. The remainder of his powers are specified in Article II, section 7: he is to be COMMANDER-IN-CHIEF of the armed forces, including the militia when in the service of the United States; he may require opinions from...