The lamentable notion of indefeasible presidential powers: A reply to professor Prakash

Cornell Law Review

Volumn 91, Issue 6, 2006, Pages 1383-1404

  Krent, Harold J ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 33749685139     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (171)

1. HAROLD J. KRENT, PRESIDENTIAL POWERS (2005).
2. Saikrishna Prakash, Regulating Presidential Powers, 91 CORNELL L. REV. 215 (2005). Professor Prakash does not distinguish among congressional actions that impinge on, interfere with, or directly regulate presidential powers. I agree with his implicit determination that such terms are interchangeable. Moreover, the analysis should not turn on congressional intent. Rather, the key is whether the enactment impermissibly divests the President of Article II authority.
3. Worse yet, Professor Prakash persuasively points out that what little there is in my book in the way of analysis of congressional regulatory efforts is not even consistent. See id. at 223-25.
4. See id. at 216 n.2.
5. See, e.g., CECIL V. CRABB, JR. & PAT M. HOLT, INVITATION TO STRUGGLE: CONGRESS, THE PRESIDENT AND FOREIGN POLICY (4th ed. 1992);
6. LOUIS FISHER, PRESIDENTIAL WAR POWERS (1995);
7. LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS (1990).
8. See, e.g., HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS (1999);
9. MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2001).
10. Such conflicts have always arisen, see KRENT, supra note 1, at 12-16, but they grew in intensity and frequency in the latter part of the twentieth century during the Reagan and Clinton administrations and have resurfaced with a vengeance during the current Bush reign. See id. at 15-16.
11. See Prakash, supra note 2, at 232-49.
12. See id. at 232-36.
13. See id. at 236-37.
14. See id. at 237-39.
15. See id. at 240-49.
16. See id. at 231, 240-51.
17. See id. at 240-49.
18. See id. at 249-56.
19. See infra Part II.
20. 343 U.S. 579 (1952).
21. See infra Part III.
22. U.S. CONST. art. II, § 2. By the same token, presidential measures that would undermine Congress's impeachment option, such as an argument that impeachment cannot be used unless the executive branch first convicts the officer of a "High Crime or misdemeanor," should similarly be presumptively rejected in light of the pivotal checking function of impeachments. Professor Prakash's review, which focuses only on congressional incursions into the President's authority, misses that such conflicts must be assimilated into the larger domain of all separation-of-powers conflicts, whether presidential incursions into Congress's realm or judicial usurpations of executive authority. See infra notes 63-64 and accompanying text.
23. See Prakash, supra note 2, at 231.
24. See id. at 226.
25. See id. at 231.
26. See id. at 232 ("Although the Necessary and Proper Clause may be the best candidate for a source of generic authority to regulate powers granted to others, it is nonetheless an extremely weak candidate.").
27. See, e.g., Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 439 (1977). Some have argued that Congress can regulate presidential powers that are implicit in Article II, such as presidential privilege, but cannot touch those that lie more firmly entrenched in the text, such as the Commander-in-Chief power. See, e.g., Michael E. Solimine, Nepotism in the Federal Judiciary, 71 U. CIN. L. REV. 563 (2003);
28. Michael L. Yoder, Note, Separation of Powers: No Longer Simply Hanging in the Balance, 79 GEO. L.J. 173 (1990). Justice Anthony Kennedy had suggested this possible approach in Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989) (Kennedy, J., concurring), a case questioning whether Congress can force a federal advisory group to meet in the open when the group is to advise the President on appointments. Justice Kennedy differentiated situations in which Congress should have no role, such as when the open meeting requirement directly undermined a textually grounded right under Article II, from those in which a congressional enactment merely shaped a more attenuated executive interest, such as privilege or the President's removal authority over officers of the United States. See id. at 481-87. In the former context, "[w]here a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself." Id. at 486. I agree with Professor Prakash that any such approach is fundamentally misguided. Consider the removal power of the President. U.S. CONST. art. II, § 2, cl. 2. The Constitution is silent as to whether the President has the power to remove at will executive officials. Nonetheless, despite that omission, Presidents and members of Congress since the Washington administration have believed that the President's removal power is constitutionally based, even though there have been disputes as to whether Congress can limit the removal power over particular categories of officials. See KRENT, supra note 1, at 37-39. Whether a power is lodged specifically in the text of Article II does not speak to whether Congress has any policymaking role in that arena. Moreover, much exercise of executive authority that is textually based can only be derived by inference. For instance, although the Constitution lodges the pardon power in the President, it says nothing of the power of the President to attach conditions to its exercise. See id. at 205-13. Should that attribute of the pardon power, because unstated, be subject to more congressional regulation than the unconditional exercise of the pardon authority? Consider as well the many powers that Presidents have sought to exercise under the Commander-in-Chief power. We know that some Commander-in-Chief power exists, but does it include the power to seize steel mills or conduct warrantless surveillance? See, e.g., Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952). The degree that a particular presidential exercise of power can be traced to the constitutional text does not provide a meaningful way to understand when Congress can regulate or impinge upon presidential powers. There is no way to separate constitutional powers into regulable and nonregulable categories.
29. Pub. L. No. 93-526, 88 Stat. 1695 (1974) (codified as amended at 44 U.S.C. § 2111 (2000)).
30. See KRENT, supra note 1, at 179-80.
31. 433 U.S. 425 (1977).
32. Id. at 443.
33. Id. But see Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MINN. L. REV. 1143 (1999) (questioning the legitimacy of executive privilege on originalist grounds).
34. See Nixon, 433 U.S. at 513-14.
35. See, e.g., Prakash, supra note 2, at 245-46.
36. See KRENT, supra note 1, at 177.
37. See, e.g., Prakash, supra note 29, at 1182.
38. U.S. CONST. art. II, § 2, cl. 2.
39. See infra notes 100-16 and accompanying text.
40. 343 U.S. 579 (1952).
41. Exec. Order No, 10,340, 17 C.F.R. 3139 (1952).
42. U.S. CONST. art. II, § 3, cl. 1.
43. U.S. CONST. art. II, § 2, cl. 1.
44. See MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL POWER 126 (1977).
45. Youngstown, 343 U.S. at 583.
46. J. MALCOLM SMITH & CORNELIUS P. COTTER, POWERS OF THE PRESIDENT DURING CRISES 135 (1960).
47. See Prakash, supra note 2, at 231, 240-51.
48. See, e.g., 98 CONG. REC. H4192 (daily ed. Apr. 21, 1952) (statement of President Harry S. Truman); 98 CONG. REC. H3962 (daily ed. Apr. 9, 1952) (statement of President Harry S. Truman).
49. 343 U.S. at 589.
50. Id. at 655-60 (Burton, J., concurring).
51. Id. at 589 (Frankfurter, J., concurring).
52. See id. (Frankfurter, J., concurring); id. at 659 (Burton, J., concurring).
53. See id. at 635-38 (Jackson, J., concurring).
54. See id. at 656-71 (Jackson, J., concurring).
55. See id. at 635 n.2 (Jackson, J., concurring).
56. See id. at 635 (Jackson, J., concurring).
57. See id. (Jackson, J., concurring).
58. See id. at 637 (Jackson, J., concurring).
59. See id. (Jackson, J., concurring).
60. See id. (Jackson, J., concurring).
61. See id. at 645 (Jackson, J., concurring).
62. See id. (Jackson, J., concurring).
63. See Prakash, supra note 2, at 249-50.
64. Id. at 250.
65. U.S. CONST. art. II, § 3.
66. Prakash, supra note 2, at 251.
67. See KRENT, supra note 1, at 96-102, 106-08.
68. See 39 Op. Att'y Gen. 348 (1939).
69. See U.S. CONST. art. I, § 8, cl. 18.
70. See U.S. CONST. art. II, § 2.
71. See U.S. CONST. art. III, § 2, cl. 1.
72. See U.S. CONST. art. II, § 2.
73. See KRENT, supra note 1, at 2.
74. See U.S. CONST. art. I, § 8; U.S. CONST. art. II, § 2.
75. 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
76. See, e.g., Morrison v. Olson, 487 U.S. 654, 693 (1998) (stating that the system of checks and balances established by the Framers serves as a "self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other" (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976))).
77. See U.S. CONST. art. II, § 2.
78. See id.
79. See id.
80. See KRENT, supra note 1, at 118-20.
81. See President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006," 41 WEEKLY COMP. PRES. DOC. 1918 (Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/ 2005/12/20051230-8.html [hereinafter Bush Press Conference];
82. see also Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172, 200-07 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) (asserting that the President's exercise of authority pursuant to the Commander-in-Chief Clause cannot be circumscribed by Congress).
83. 343 U.S. 579 (1952).
84. With respect to the Bush administration's view as to its unilateral control over enemy combatants, see Brief for the Petitioner at 48, Rumsfeld v. Padilla, 542 U.S. 426 (2004) (No. 03-1027), available at http://www.usdoj.gov/ osg/briefs/2003/3mer/2mer/2003-1027.mer.aa.pdf.
85. Such use of the Commander-in-Chief power would violate the terms of the Posse Comitatus Act. 18 U.S.C. § 1385 (2000).
86. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified in scattered sections of the U.S.C.), amended by Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified in scattered sections of 18 U.S.C).
87. See, e.g., Jeremy D. Mayer, 9-11 and the Secret FISA Court: From Watchdog to Lapdog?, 34 CASE W. RES. J. INT'L L. 249, 250-51 (2002);
88. Justin Sandberg, The Need for Warrants Authorizing Foreign Intelligence Searches of American Citizens Abroad: A Call for Formalism, 69 U. CHI. L. REV. 403, 407-09 (2002).
89. Defense counsel never see FISA warrants, government agents do not need to report back to the FISA court as to their efforts to minimize the invasions of privacy, and proceedings of the court are not published. See Nola K. Breglio, Note, Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance, 113 YALE L.J. 179 (2003). No government application for a warrant under FISA was denied in the first twenty-five years of its existence.
90. See Helene E. Schwartz, Oversight of Minimization Compliance Under the Foreign Intelligence Surveillance Act: How the Watchdogs Are Doing Their Jobs, 12 RUTGERS L.J. 405, 445 n.235A, 446 n.239 (1981).
91. See Bush Press Conference, supra note 77.
92. See U.S. CONST. art. I, § 8.
93. 50 U.S.C. app. §§ 1-44 (2000).
94. See, e.g., REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (to be codified in scattered sections of 8 and 49 U.S.C.); Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C).
95. See, e.g., Intelligence Authorization Act of 1991, 50 U.S.C. § 413 (2000). Congress has also provided a framework for the exercise of presidential powers in an emergency. National Emergencies Act of 1976, 50 U.S.C. §§ 1601-51 (2000).
96. See McCain Amendment, Pub. L. No. 109-148, 119 Stat. 2680 (2005).
97. Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).
98. Id.
99. Id. at 177-78.
100. See U.S. CONST. art. I, § 8.
101. Id. art. I, § 8, cl. 11.
102. Id. art. I, § 8, cl. 12.
103. Id.
104. Id. art. I, § 8, cl. 14.
105. U.S. CONST. art. I, § 9, cl. 2.
106. See, e.g., Prakash, supra note 2, at 229 (describing the Supreme Court's "laissez-faire attitude towards congressional regulation of executive power").
107. 343 U.S. 579, 585-89 (1952).
108. See id. at 587-89.
109. See id. at 640 (Jackson, J., concurring).
110. 433 U.S. 425 (1977).
111. See id. at 441-43.
112. See id. at 443-46.
113. In separation of powers cases overall, the Court has seemingly vacillated between functional and formal approaches. Nixon and others manifest a functional approach in attempting to weigh the respective interests, while INS v. Chadha, 462 U.S. 919 (1983), and Bowsher v. Synar, 478 U.S. 714 (1986), reflect a more formal approach in identifying whether a particular function can be exercised by Congress. See generally M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603 (2001) (arguing that neither a functional nor a formal approach to resolving separation-of-powers controversies is sound);
114. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488 (1987) (addressing formal and functional approaches to resolving separation-of-powers controversies).
115. See Prakash, supra note 2, at 237.
116. See id. at 238.
117. 487 U.S. 654 (1988).
118. See id. at 685-94.
119. See id. at 659-60.
120. Id. at 696.
121. See id.
122. See id.
123. See id.
124. See id.
125. See Prakash, supra note 2, at 225-26.
126. For a sampling, see 1 KENNETH DAVIS, ADMINISTRATIVE LAW TREATISE § 2.6 at 77-82 (2d ed. 1978);
127. Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225;
128. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 578 (1984).
129. 433 U.S. at 456-57.
130. 487 U.S. at 696.
131. This is not to suggest that the system of checks and balances prescribed in the Constitution is the best system that can be established, or that it can easily be applied contemporarily given the changes in government over the last two hundred years. See Magill, supra note 106, at 658. Nonetheless, those checks undeniably played a key role in establishing the constitutional structure and are enshrined in the Constitution. See, e.g., THE FEDERALIST No. 51, at 321-22 (J. Madison) (Clinton Rossiter ed., 1961); THE FEDERALIST No. 73, at 442-43 (A. Hamilton).
132. I am apparently partial to partial resolution of the accommodations among the branches. See Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253 (1988) (arguing that a subset of conflicts among the branches can be resolved formally by confining each branch to its specified manner of acting).
133. 15 U.S.C. § 57a-1 (1982).
134. 463 U.S. at 1218.
135. 463 U.S. 1216 (1983).
136. 462 U.S. 919 (1983).
137. Id. at 928.
138. Id. at 947-48.
139. On the other hand, the President's ability to pocket veto a bill may not be as sacrosanct in that the Constitution recognizes only one instance in which the President can deprive Congress of the ability to override his veto, when "Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." U.S. CONST. art. I, § 7, cl. 2. The Constitution requires that, before adjourning, Congress permit the President a ten-day period in which to veto or sign legislation. Id. One related controversy grew out of Congress's effort to restrict military aid to El Salvador. See, e.g., Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), vacated sub. nom. Burke v. Barnes, 479 U.S. 361 (1987). Prior to adjourning, Congress appointed an agent authorized to receive veto messages during that period. Id. at 30. President Ronald Reagan claimed that the adjournment allowed him to prevent the bill from becoming law without the need for a veto. Id. at 25. The Court of Appeals for the District of Columbia held that the presence of the agent sufficed to allow the President sufficient time to consider whether to veto the bill. Id. at 35. Otherwise, the President by refusing to act on the bill could prevent it from becoming law and thereby circumvent Congress's ability to override a veto. Id. at 30. Although the Supreme Court never reached the issue, efforts to expand the pocket veto should be approached skeptically given the checking role of Congress in potentially overriding any veto.
140. 80 U.S. (13 Wall.) 128 (1871).
141. Id. at 131.
142. Id. at 132.
143. Id.
144. Id. at 128.
145. Id. at 132.
146. Id.
147. Id.
148. Id. at 148; see Gordon G. Young, Congressional Regulation of Federal Courts' Jurisdiction and Processes: United States v. Klein Revisited, 1981 WISC. L. REV. 1189 (1981).
149. Act of July 12, 1870, ch. 251, 16 Stat. 230.
150. Id.
151. Id.
152. See, e.g., Carlisle v. United States, 83 U.S. (16 Wall.) 147 (1872).
153. See, e.g., Proclamation 4311: Granting Pardon to Richard Nixon, 39 Fed. Reg. 32,601 (Sept. 13, 1974).
154. See, e.g., BARBARA OLSON, THE FINAL DAYS 121-23 (2001).
155. See KRENT, supra note 1, at 201-02.
156. Although all congressional interference with the President's pardon authority is presumptively unconstitutional, there may well be some enactments that survive challenge, such as a congressional determination that all pardons be reported to Congress for it to study in determining whether to revise sentences.
157. 424 U.S. 1 (1976).
158. See, e.g., Morrison v. Olson, 487 U.S. 654, 704 (1988).
159. See CONST. art. II, § 2, cl. 2.
160. Note that, to the extent that Congress can prevent the President from removing an executive official, exercise of an unfettered appointment authority is more critical to the balance of powers in the Constitution.
161. See Bowsher v. Synar, 478 U.S. 714 (1986).
162. See 487 U.S. at 733-34.
163. Some academics have argued to the contrary that, like the "take care" clause, the Commander in Chief Clause vests in the President only such power that Congress sees fit to leave in his hands. See, e.g., Curtis Bradley et al., On NSA Spying: A Letter to Congress, 53 N.Y. REV. OF BOOKS, Feb. 9, 2006, at 43-44. I am as dubious of the congressional absolutist position as I am of Professor Prakash's proexecutive stance. Accommodations must be made between the powers of Congress and the independent authority of the President in the sphere of war.
164. U.S. CONST. art. II, § 3, cl. 1.
165. See, e.g., Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515 (1991) (arguing for limited senatorial power to graft conditions onto treaties);
166. Stefan A. Riesenfeld & Frederick M. Abbott, The Scope of U.S. Senate Control over the Conclusion and Operation of Treaties, 67 CHI.-KENT L. REV. 571 (1991) (same).
167. 307 U.S. 433 (1939).
168. See id. at 435-36.
169. See id. at 447.
170. See id. at 458-60.
171. Id. at 456.