A taxonomy of presidential powers

Boston University Law Review

Volumn 88, Issue 2, 2008, Pages 327-340

  Prakash, Saikrishna Bangalore ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 44849112577     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (51)

1. See, e.g., Scott Shane & Adam Liptak, Shifting Power to a President, N.Y. TIMES, Sept. 30, 2006, at A1.
2. See, e.g., Michael Powell, Appeals Court Weighs Bush's War Power; Act of Congress Needed for Iraq Invasion, Suit Says, WASH. POST, Mar. 12, 2003, at A14.
3. See, e.g., Editorial, Unauthorized Snooping, WASH. POST, Dec. 20, 2005, at A30.
4. See, e.g., Charlie Savage, Bush Challenges Hundreds of Laws, BOSTON GLOBE, Apr. 30, 2006, at A1.
5. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646-47 (1952) (Jackson, J., concurring) ("Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. 'Inherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers are used, often interchangeably and without fixed or ascertainable meanings.").
6. See U.S. CONST. art. II, § 1, cl. 1.
7. Gary Lawson, Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis, 87 B.U. L. REV. 289, 305 (2007).
8. For a historical discussion of the "Vesting-Clause Thesis" contained in a modern law review, see generally Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004).
9. For a defense of the claim that the vesting clause vests powers, see generally Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701.
10. See generally David Gray Adler, The Steel Seizure Case and Inherent Presidential Power, 19 CONST. COMMENT. 155 (2002).
11. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
12. See, e.g., Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial Review, 56 S. CAL. L. REV. 863, 907 (1983).
13. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
14. See Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).
15. Cf. Gibbons, 22 U.S. (9 Wheat.) at 189, 197 (stating that the scope of the commerce power is "given by the language of the instrument which confers [it], taken in connexion with the purposes for which [it was] conferred" and concluding by way of deduction that "[t]he power of Congress . . . comprehends navigation, within the limits of every State").
16. See generally Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. REV. 1346 (1994).
17. See The Laura, 114 U.S. 411, 413-14 (1885).
18. The President's Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them, Op. Off. Legal Counsel (Sept. 25, 2001), available at http://www.usdoj.gov/olc/warpowers925.htm.
19. See id.
20. See supra note 14 and accompanying text.
21. Chambers v. NASCO, 501 U.S. 32, 44 (1991).
22. See U.S. CONST. art II, § 2, cl. 1.
23. Id. art II, § 1, cl. 1.
24. See, e.g., Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779, 1816-17 (2006).
25. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 570-81 (1994).
26. See, e.g., Lawson, supra note 7, at 304-10.
27. See, e.g., Bradley & Flaherty, supra note 8, at 679-88.
28. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (Frankfurter, J., concurring) (1952) ("In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II.").
29. 418 U.S. 683, 711 (1974) ("Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.").
30. Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701, 713-15 (1995) ("The structural constitutional logic undergirding temporary immunity applies with even greater force to the President.").
31. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319-20 (1936).
32. Id.
33. See 272 U.S. 52, 119-20 (1926).
34. For a discussion of the Decision of 1789, see generally Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021 (2006).
35. But see Myers, 272 U.S. at 164-77 (discussing nineteenth-century limitations on the removal power and ultimately finding the limits unconstitutional). It is also possible to regard statutes requiring Senate concurrence for removals as reflecting the very different view that the removal power was not regulable by statute but was already checked by the Constitution itself. In other words, those who passed statutes stating that removals could only occur with the Senate's concurrence may not have been checking the removal power as much as they were advocating the view that the Constitution itself granted the President a removal power only exercisable with the Senate's concurrence.
36. Judiciary Act of 1789 § 35, ch. 20, 1 Stat. 73, 93.
37. My colleague Michael Ramsey and I previously described the President's executive power over foreign affairs as a residual power because the President only had foreign affairs powers that were not otherwise ceded to Congress in Article I or were shared with the Senate in Article II. See Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 253-54 (2001). I am using "residual power" in a different sense here to cover those powers the President can exercise at the sufferance of Congress. In other words, these are powers where the President has a generic power to do something, save for when Congress has exercised, and hence withdrawn from the President, some portion of the power.
38. See U.S. CONST. art I, § 4, cl. 1.
39. Id. art I, § 8, cl. 1.
40. See Reid Skibell, Separation-of-Powers and the Commander in Chief: Congress's Authority To Override Presidential Decisions in Crisis Situations, 13 GEO. MASON L. REV. 183, 213-17 (2004).
41. See, e.g., Gregory C. Sisk, Suspending the Pardon Power During the Twilight of a Presidential Term, 67 MO. L. REV. 13, 18-22 (2002).
42. See, e.g., Robert J. Delahunty & John C. Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them, 25 HARV. J.L. & PUB. POL'Y 487, 488-97 (2002).
43. See Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566.
44. See, e.g., U.S. CONST. art. I, § 3, cl. 6; id. art. I, § 8, cls. 1, 17.
45. Prakash, supra note 23, at 1844-45.
46. See, e.g., Peter L. Strauss, Overseer, or "The Decider"?: The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 727 (2007).
47. Given that the President could immediately and rather effortlessly countermand any statutory commands issued by Congress, it seems likely the power to direct military operations is not a horizontally concurrent power.
48. For instance, it is rather hard to imagine that either state legislatures or executives have the power to get written opinions from federal executives or enjoy the authority to nominate individuals for federal office. It seems clear the states have no power over such matters.
49. See MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 259-82 (2007).
50. To be sure, the powers are not completely concurrent. While the President can make international agreements and foreign affairs policy for the entire United States, officials within a state only have power to make such decisions for a particular state. Yet if one compared the President to the entire foreign policy apparati of all the states, perhaps one would conclude that the President's power to make non-binding foreign policy and international agreements is horizontally concurrent.
51. U.S. CONST. art. I, § 10, cl. 1.