The President's completion power.

AuthorGoldsmith, Jack L.
PositionSymposium on Executive Power

ESSAY CONTENTS INTRODUCTION I. YOUNGSTOWN AND THE COMPLETION POWER II. THE COMPLETION POWER AFTER YOUNGSTOWN A. Foreign Affairs Authorizations B. Presidential Use of Military Force Abroad C. Executive Enforcement D. Presidential Supervision of Rulemaking E. The Chevron Doctrine III. THE COMPLETION POWER: A TENTATIVE ANALYSIS A. Constitutional Source B. Scope and Limits CONCLUSION INTRODUCTION

This Essay examines an important but understudied feature of executive power: the President's completion power. The completion power is the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of any congressional authorization to complete that scheme. The completion power complements but does not derive from particular statutory commands. It is a defeasible power; Congress can limit it, for example, by denying the President the authority to complete a statute through certain means or by specifying the manner in which a statute must be implemented. But in the absence of such affirmative legislative limitation or specification, courts and Presidents have recognized an Article II power of some uncertain scope to complete a legislative scheme.

The completion power merits analysis for at least three reasons. First, Presidents have exercised the completion power in very different contexts--for example, in administering a regulatory statute, in exercising prosecutorial discretion, and in using force abroad in the absence of express congressional authorization--based on nominally different sources of authority in Article II. Focus on the completion power as such might lend conceptual coherence to several important areas of executive authority whose connection has not previously been understood. Second, the most comprehensive statement of what we call the completion power is found in Chief Justice Vinson's neglected dissent in Youngstown Sheet & Tube Co. v. Sawyer. (1) Despite its general disregard in constitutional jurisprudence, the frame of analysis in Vinson's dissent corresponds to a surprising number of important post-Youngstown doctrinal developments. Given the canonical status of Youngstown, even a partial vindication of Vinson's approach is of intrinsic interest. Third, and perhaps controversially, examination of the completion power sheds light on a potentially interesting structural symmetry that cuts across Articles I, II, and III of the Constitution--namely, that even though only Article I contains an express Necessary and Proper Clause, each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it.

Our aim in this Essay is to put the completion power, as a distinct presidential power, on the table for analysis. Space constraints compel us to cut a wide swath over many complex areas of executive power and bracket many complicating factors and nuances that a complete treatment of the subject would need to address. In these respects, the Essay seeks to be the first word, not the last, on the completion power. Part I describes the completion power through the lens of the leading opinions in Youngstown. Part II shows how aspects of the completion power suggested in Chief Justice vinson's dissent have become central to post-Youngstown developments in several important areas of executive power. Part III examines normative questions about the completion power.

  1. YOUNGSTOWN AND THE COMPLETION POWER

    In the midst of the Korean Conflict, the United Steelworkers of America called a nationwide strike to resolve a labor dispute concerning the terms and conditions of employment in the steel industry. President Truman responded with an Executive Order directing the Secretary of Commerce to seize and operate the steel mills. (2) The Order contained specific presidential findings about the indispensability of steel production to the war effort in Korea and to other defense efforts. (3) Before the Supreme Court, the Truman Administration relied not on express statutory authority to seize the mills, but rather on inherent executive authority emanating from the Clause vesting "the executive Power" in the President, (4) the Commander in Chief Clause, (5) and the Clause enjoining the President to "take Care that the Laws be faithfully executed." (6)

    The Supreme Court rejected these claims and enjoined the seizure. Writing for the majority, Justice Black began by noting that no statute expressly or impliedly authorized the seizure. (7) Although the President had determined that the steel seizure was essential to procure vital defense materiel (pursuant, of course, to congressional appropriations), Black reasoned that the President derived no power from the Vesting or Take Care Clauses to seize the mills. Indeed, Black drew the opposite inference from the Take Care Clause, noting that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." (8) For Justice Black, Article I's vesting Clause established that legislative power is exclusively vested in Congress, and the Necessary and Proper Clause underscored Congress's power and responsibility to provide the means for implementing the policies it adopts. (9) The infirmity in President Truman's Executive Order was that it did "not direct that a congressional policy be executed in a manner prescribed by Congress--it direct[ed] that a presidential policy be executed in a manner prescribed by the President." (10) Even if previous Presidents had undertaken similar actions, such practice did not, for Justice Black, divest Congress of "its exclusive constitutional authority" to make necessary and proper laws to implement its legislative authority. (11) In other words, the Vesting and Take Care Clauses did not create an Article II completion power, but rather authorized the President merely to carry out what Congress itself had specifically prescribed when exercising its legislative powers under Article I.

    Chief Justice Vinson's dissent also focused on what we call the completion power, but of course viewed the power in a much different light. Vinson's opinion began by invoking an array of legislatively approved policies that President Truman's order sought to implement. Vinson described the legislative program at a high level of generality and implicitly conceded that it contained no mandate, express or implied, to seize the steel mills in the circumstances before the Court. (12) Nonetheless, in Vinson's judgment, the successful execution of a vast body of legislative commitments depended upon the President's ability to keep the mills functioning. Turning first to treaty obligations, Vinson cited the (Senate-approved) United Nations Charter, which articulates a purpose "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." (13) Pursuant to that Charter, moreover, the U.N. Security Council had "called upon member nations 'to render every assistance' to repel aggression in Korea." (14) After cataloguing a host of other specific international obligations assumed by the United

    States in the early Cold War period, Vinson emphasized the "large body of implementing legislation" that followed upon those commitments. (15) Most important for Vinson were the military appropriations--"$230 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea." (16) Most of the resulting increase in defense spending and foreign military aid, he added, was "for military equipment and supplies--guns, tanks, ships, planes, and ammunition-all of which require steel." (17) For Vinson, the question in Youngstown came down to the related propositions that "[t]he President has the duty to execute the foregoing legislative programs" and that "[t]heir successful execution depends upon continued production of steel." (18)

    It did not matter to Vinson that no "specific statute authoriz[ed] seizure of the steel mills, as a mode of executing the laws." (19) Rather, Vinson thought the President possessed a residual capacity to take the steps necessary to carry out Congress's program, even if Congress itself had not provided for those specific steps. He believed that "the President is a constitutional officer charged with taking care that a 'mass of legislation' be executed," and that "[f]lexibility as to mode of execution to meet critical situations is a matter of practical necessity." (20) In making these arguments, Vinson emphasized the interpretive tradition of understanding open-ended constitutional provisions in light of the "practical construction" placed upon them over time by the branches of government charged with implementing them. (21) Vinson offered multiple instances of historical practice--some stretching back to the early days of the Republic--to substantiate his claim that "the executive Power" and the Take Care Clause include a completion power that enables the President to go beyond (but not against) the implemental prescriptions of particular statutes, when necessary to effectuate the legislative program. (22) Based upon these examples, Vinson concluded that "Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution." (23)

    To sharpen Vinson's conception of the completion power, it is helpful to consider its relationship to Justice Jackson's famous concurring opinion in Youngstown establishing a tripartite scheme for analyzing assertions of executive power. Jackson believed that Truman's steel seizure fell into his third category (in which the President undertakes "measures incompatible with the expressed or implied will of Congress") and concluded that the President possessed no constitutional authority to disregard Congress's will in these...

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