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Implied Presidential and Congressional Powers IMPLIED PRESIDENTIAL AND CONGRESSIONAL POWERS David M. Driesen† & William C. Banks† TABLE OF CONTENTS INTRODUCTION ..................................................................................................................... 1302 I. EXPRESS AND IMPLIED POWERS OF THE PRESIDENT AND CONGRESS: CONCEPTS AND DEFINITIONS .................................................................................................................. 1309 A. Express Power ................................................................................................... 1310 1. Express Congressional Authority ..................................................... 1310 2. Express Presidential Authority ......................................................... 1311 3. Shared Express Powers ....................................................................... 1312 B. Implied Power ................................................................................................... 1314 1. Implied Congressional Power: McCulloch v. Maryland ............... 1314 2. Implied Presidential Power ............................................................... 1316 3. Defining Implied Power ..................................................................... 1321 4. Congressional Versus Executive Authority under Youngstown and McCulloch ............................................................................................. 1323 II. ASYMMETRIC IMPLIED POWER .................................................................................... 1324 A. The Failure to Give Congressional Views Much Credence in Presidential Power Cases ...................................................................................................... 1325 B. The Asymmetric Use of Historical Practice ................................................ 1332 C. Applying McCulloch’s Means/Ends Reasoning to Presidential Actions but Not Always to Congressional Enactments ........................................... 1335 † Visiting Scholar, Harvard Law School, Spring of 2019; University Professor, Syracuse University. We would like to thank Jack Goldsmith, Harold Krent, Eric Orts, and Daphna Renan for helpful comments. † Board of Advisers Distinguished Professor, Professor of Law Emeritus, Syracuse University College of Law. 1301 1302 CARDOZO LAW REVIEW [Vol. 41:1301 III. NORMATIVE EVALUATION OF THE ASYMMETRY....................................................... 1340 A. Prima Facie Problems with the Asymmetry................................................ 1342 1. Lack of Contemporary Congressional Influence on Implied Power Cases ...................................................................................................... 1342 2. Asymmetric Custom ........................................................................... 1345 3. Means/Ends Reasoning ...................................................................... 1347 4. Democracy and the Rule of Law ....................................................... 1348 B. Reasons to Resist the Prima Facie Case........................................................ 1351 1. Judicial Supremacy.............................................................................. 1351 2. Federalism and National Security .................................................... 1353 IV. ASYMMETRIC IMPLIED POWER AND PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION ................................................................................................................ 1359 CONCLUSION .......................................................................................................................... 1365 INTRODUCTION A significant question of constitutional law has received a lot of attention lately—whether the Department of Justice (DOJ) may indict a sitting President.1 The Constitution’s text does not prohibit indictment of a sitting President, so the idea that he has the power to avoid indictment while in office raises an issue of implied presidential power.2 1 See, e.g., Salvador Rizzo, Can the President be Indicted or Subpoenaed?, WASH. POST (May 22, 2018, 3:00 AM), https://www.washingtonpost.com/news/fact-checker/wp/2018/05/22/can-the- president-be-indicted-or-subpoenaed [https://perma.cc/PLR2-PG3B]. 2 Like most scholars, we do not distinguish “implied” from “inherent” authority. See Joseph J. Anclien, Broader Is Better: The Inherent Powers of Federal Courts, 64 N.Y.U. ANN. SURV. AM. L. 37, 40– 41 (2008) (explaining that no sharp distinction exists between inherent and implied power); accord Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring) (suggesting that these and other terms are interchangeable). Louis Fisher, however, defines implied power as power derived from an express power and inherent power as power not “reasonably” derived “from express grants” but rather from the nature of the office. Louis Fisher, The Unitary Executive and Inherent Executive Power, 12 U. PA. J. CONST. L. 569, 586, 588–89 (2010). We do not find this distinction useful as one’s conception of an office’s nature depends, in part, on the express authorities it possesses. Furthermore, the narrow conception of implied power as that derived from an express power seems inconsistent with McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the leading case on implied power, which approved an implied power to charter a national bank without deriving that power from a particular express power. Robert J. Kaczorowski, Inherent National Sovereignty Constitutionalism: An Original Understanding of the U.S. Constitution, 101 MINN. L. REV. 699, 779 (2016). 2020] IMPLIED POWERS 1303 This Article compares the modern Supreme Court’s treatment of implied presidential power to its treatment of implied congressional power across a wide variety of subject matter areas. It takes care to define implied powers, something neglected in the literature. That definition leads to the conclusion already articulated, that presidential indictment, while usually characterized as an immunity issue, is also an implied power issue. The literature on implied powers usually focuses on a specific implied power or the implied powers of a particular branch of government, but it does not compare the application of implied power concepts to different branches of government.3 The President’s power over foreign affairs and national security, which is primarily an implied power, has received the most scholarly attention.4 Former Yale Law School Dean Harold Koh once opined that the President almost always wins in foreign affairs cases.5 Koh and many other constitutional scholars maintained that the judiciary cooperated in increasing the implied power of the President over foreign affairs and 3 See, e.g., GARY LAWSON ET AL., THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE (2010) (focusing on the textual source of implied congressional power); David Gray Adler, The Steel Seizure Case and Inherent Presidential Power, 19 CONST. COMMENT. 155 (2002) (focusing on implied presidential power); Anclien, supra note 2, at 56 (focusing on the courts’ implied powers); Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 YALE L.J. 2280 (2006) (focusing on implied presidential power to complete a statutory scheme); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 271 (1993) (focusing on congressional power). But see William Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of “The Sweeping Clause,” 36 OHIO ST. L.J. 788, 793–94 (1975) (arguing that generally only Congress may add implied presidential and judicial authority). 4 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318–20 (1936) (implying an exclusive, plenary presidential power over foreign relations primarily from the attributes of sovereignty and functional considerations); see, e.g., LOUIS FISHER, SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS (2017); ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC (2010); PETER M. SHANE, MADISON’S NIGHTMARE: HOW EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY (2009); Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 VA. L. REV. 101 (1984); Abraham D. Sofaer, The Power over War, 50 U. MIAMI L. REV. 33 (1995); cf. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 246, 256–57 (2001) (conceding that most scholars assume that constitutional text does not resolve debates about the President’s foreign affairs power while arguing that the Vesting Clause creates the President’s foreign affairs power); Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004) (refuting Prakash and Ramsey’s Vesting Clause thesis). 5 See Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255 (1988). 1304 CARDOZO LAW REVIEW [Vol. 41:1301 national security by habitually deferring to or declining to review presidential initiatives in that area.6 Ganesh Sitaraman and Ingrid Wuerth, however, recently argued that the counterterrorism cases and the Roberts Court have moved away from special treatment of foreign affairs, including the Court’s especially generous implication of presidential power over foreign affairs.7
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