Taking cues from Congress: judicial review, congressional authorization, and the expansion of presidential power.

• Author: Moore, David H.

ABSTRACT

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power--Justice Jackson's tripartite framework and the historical gloss on executive power--congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power.

INTRODUCTION

Some of the Supreme Court's most significant cases address the scope of presidential power: Can the President indefinitely detain enemy combatants and try them by military commission? (1) Can the President unilaterally execute judgments of the International Court of Justice in preemption of state law? (2) Can the President require that claims filed in U.S. courts against a foreign state be brought in an international tribunal? (3) In determining the scope of presidential power, the Court often takes its cues from Congress. Under the famous tripartite framework from Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the Court will uphold presidential action that is authorized by Congress. (4) Under the analysis emanating from Justice Frankfurter's Youngstown concurrence, the Court may find that a history of congressional authorization has produced a gloss on the executive power vested in the President. (5)

On one hand, the Court's reliance on congressional authorization makes sense. If the President and Congress, who are also bound by the Constitution, clearly agree that the President is authorized to exercise a particular power, who is the judiciary to second guess, especially in areas like foreign affairs where the judiciary is a confessed second-rate player? (6) On the other hand, courts and commentators have overlooked the fact that congressional authorization may result from a failure of the Constitution's canonical system of checks and balances. For various reasons, Congress may act against institutional interest to authorize the expansion of presidential power. When this occurs, judicial reliance on congressional authorization through the Court's accepted analyses aggravates a failure of checks and balances. Rather than correct, the Court piles on. The result--through court holding and foregone lawsuits against presidential actions authorized by Congress--is a troubling erosion of checks and balances with power accumulating in the President.

This Article exposes the trouble with the judiciary taking cues from congressional authorization in evaluating presidential power. Part I discusses the nature and prominence of the analyses emanating from Youngstown--Justice Jackson's three-part paradigm and Justice Frankfurter's historical gloss--highlighting the risk that each may build upon a failure of checks and balances. Part II describes the scholarship that has come closest to identifying the checks and balances problem with basing presidential power on congressional authorization--a recent article by Curtis Bradley and Trevor Morrison. (7) The article identifies concerns with judicial reliance on passive congressional acquiescence, but does not detect problems with reliance on congressional authorization. Indeed, the article affirmatively endorses the probative value of congressional authorization, ultimately providing an example of scholarly buy-in to the practice this Article challenges. Part III briefly recounts the Constitution's canonical system of checks and balances, while Part IV draws on relevant social science literature to identify various reasons why checks and balances may fail when Congress affirmatively approves presidential conduct. The focus in Part IV is on the shifting of foreign affairs power, which is particularly common. The theories and evidence of Part IV suggest a reduced role for reliance on congressional authorizations. Part V addresses counter-concerns to the thesis that the failure of checks and balances in congressional authorizations should lead to reduced reliance on such authorizations. Part VI discusses the implications of the failure of checks and balances for future judicial review of presidential power, exploring possible solutions to the problem exposed by this Article.

1. RELIANCE ON CONGRESSIONAL AUTHORIZATION

   The Court's two principal approaches for assessing presidential power ironically derive from the same case but not its majority opinion. In Youngstown, the Court concluded that President Truman acted unconstitutionally in seizing domestic steel mills to support the nation's Korean War effort. (8) While the majority looked for statutory authorization for the President's actions, (9) Justice Jackson's and Justice Frankfurter's separate concurrences proved more influential in establishing the Court's reliance on congressional authorization. Although both opinions expressly referenced checks and balances, (10) both raise the threat that the judiciary will constitutionalize presidential practices based on failures of checks and balances.

   1. Justice Jackson's Three Categories

      Justice Jackson observed that federal branch powers are not understood in isolation, but in combination. (11) In particular, "[p]residential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress." (12) The President may stand in one of three rough categories in relation to Congress. (13) When Congress has authorized presidential action--the first category--the President's power "is at its maximum." (14) The President's acts are "supported by the strongest of presumptions and the widest latitude of judicial interpretation." (15) The judiciary might find the acts unconstitutional if the federal government as a whole lacks the power exercised; otherwise, the President will prevail. (16) In the second category, the President acts in the absence of congressional approval or disapproval. (17) In such situations, the President must rely on her own authority. (18) However, the power the President exercises might be concurrent or its distribution unclear, such that "congressional inertia, indifference or quiescence may ... invite," "at least as a practical matter," presidential action. (19) Ultimately, the constitutionality of the President's acts in this twilight zone is unpredictable ex ante. (20) In the third and final category, the President acts contrary to "the expressed or implied will of Congress." (21) The President's "power [in such circumstances] is at its lowest ebb" and can be sustained only upon a conclusion that the power exercised is exclusive to the President. (22)

      Checks and balances problems may arise in each of these categories. Surprisingly, however, Justice Jackson's first category--where the outcome is generally perceived as least controversial--is the most troubling. In the clearest category-one case, Congress has affirmatively authorized the President's conduct. Authorization may come in compliance with the Constitution's checks and balances. However, as explored below, authorization may also involve a failure of checks and balances. Regardless, congressional authorization is treated as conclusive. Only in the rare circumstance in which the federal government as a whole lacks the power exercised (23) is a category-one presidential act likely to be treated as unconstitutional. The result is that congressional authorization leads, almost inevitably, to presidential power.

      Justice Jackson's second and third categories do not present the same risk of constitutionalizing a failure of checks and balances. In the second category, Congress's failure to act undoubtedly may result from a failure of checks and balances. (24) Moreover, the Court suggests that congressional inaction might invite presidential action. However, the Court is not as likely to find the President's acts constitutional in the face of congressional inaction. As noted, these cases reside in "a zone of twilight" where resolution will "depend on the imperatives of events and contemporary imponderables." (25) Consequently, in the second category, the risk that the Court will uphold presidential action, including by relying on a failure of checks and balances, is reduced.

      In the third category, the risks of a failure of checks and balances and of Court endorsement of presidential power both diminish. In this category, Congress has opposed the President's actions. In other words, Congress has acted to check the President. While Congress may oppose the President's actions out of an improper desire to expand its own power, the Jackson framework is sensitive to that possibility. Notwithstanding congressional opposition, the Court will rule for the President if the power exercised is exclusively the President's. The Court will not rely solely on congressional opposition in fixing presidential power, thus reducing the threat of reliance on congressional overreaching. The result is that, while the second and third categories of Justice Jackson's framework may produce judicial reliance on failures of checks and balances, the risk of such reliance is greatest when the Court finds congressional...