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The Limits of Executive Power Robert J American University Law Review Volume 59 | Issue 2 Article 1 2009 The Limits of Executive Power Robert J. Reinstein Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Constitutional Law Commons Recommended Citation Reinstein, Robert J. “The Limits of Executive Power.” American University Law Review 59, no.2 (December 2009): 259-337 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. The Limits of Executive Power Abstract Justice Jackson’s concurring opinion in The tS eel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to several current theories and cases concerning presidential power. The onc struction of the presidency and the allocation of legislative and executive powers can be understood only by an examination of the historical experiences that influenced the Framers. Prominent among these were the preceding two centuries of constitutional developments in England which critically influenced the allocation of executive and legislative power in the Constitution. The ec ntral lesson of these historical experiences was that proscriptive legislative restraints on executive power were necessary but not sufficient to prevent autocracy. any of the English proscriptions on the exercise of executive power were included in our Constitution, but there was also a massive transfer of previously held executive power to the legislature. Most of the prerogatives that had been exercised by the King were vested completely in Congress, prohibited to the President, or omitted altogether from the Constitution. Of the small number delegated to the Executive, only one was the same as its royal counterpart; the others were more limited or structurally shared with the Legislative Branch. I examine this history in detail and apply its underlying principles to develop a general theory of presidential power. In lieu of creative but ultimately inconclusive arguments over indefinite powers that are said to be “executive” in nature, implied powers should be tied to, and derived from, the powers expressly vested in the President in Article II. I refute the propositions that the Vesting Clause is a residual source of plenary executive power and that there is a presidential “completion” power. I apply and elaborate on these principles in the context of the President’s two most important implied powers - executing the laws and developing and implementing foreign policy. The rP esident has broad discretion in choosing how to exercise these powers, but they are not plenary in nature. They ra e subject to three basic limitations: (1) the President may not, without congressional authorization, use these powers to change domestic law or create or alter existing legal obligations; (2) these powers are subject to regulation by Congress; and (3) in the event of a conflict between the exercise of these powers and congressional legislation, the latter prevails. Finally, I argue that these limits on presidential power have continuing validity despite the enormous changes in the country since these principles were established. We are now in much the same situation as England in the 18th century - the real power of the Executive is much greater than its nominal legal power. Although the Framers viewed the President as a necessary check on an otherwise dominant Congress, the present reality is now the reverse. The Executive has become the most powerful branch of government. There is no reason to adopt legal theories that would further enhance executive power. Keywords Separation of Powers, Presidency, Presidential power, Executive power, Prerogative, English constitution, Originalism This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol59/iss2/1 ARTICLES THE LIMITS OF EXECUTIVE POWER * ROBERT J. REINSTEIN TABLE OF CONTENTS Introduction ........................................................................................ 260 I. The Restructuring of Executive and Legislative Power .......... 265 A. The Federalist on the Allocation of Royal Prerogatives ..... 265 B. Another Look at the Royal Prerogatives and Presidential Powers ............................................................ 271 1. Legislation and taxation .............................................. 271 a. Proclamations and impositions ............................. 271 b. Assent to legislation ............................................... 277 2. Execution of the laws ................................................... 278 a. The suspending and dispensing powers ............... 278 b. Proscriptions on executive power ......................... 281 c. The courts and judicial independence ................. 282 d. The singular pardoning power ............................. 284 3. Control of the legislature ............................................ 285 a. Direct control ......................................................... 285 b. The theory of the balanced constitution .............. 286 c. Executive dominance ............................................ 287 4. Foreign affairs and the war powers ............................. 295 a. Diplomatic relations .............................................. 295 b. The military and war .............................................. 299 5. Commerce .................................................................... 304 6. An overview .................................................................. 304 * Clifford Scott Green Professor of Law, Temple University Beasley School of Law. My grateful appreciation to Jane Baron, Craig Green, Richard Greenstein, Duncan Hollis, Mark Rahdert, and Stephen Vladeck for reviewing drafts of this Article and for providing helpful criticisms and suggestions. I am particularly indebted to Scott Sowerby of Harvard University, an expert on seventeenth-century English history, for reviewing the portions of this Article dealing with constitutional developments in that period. 259 260 AMERICAN UNIVERSITY LAW REVIEW [Vol. 59:259 II. Theories of Presidential Power ................................................ 307 A. The Vesting Clause ............................................................ 307 B. A Presidential “Completion Power” ................................. 309 C. Implied Presidential Powers ............................................. 312 III. The Limits of Implied Executive Powers ................................. 315 A. Enforcement of the Laws .................................................. 315 B. Foreign Affairs ................................................................... 323 Conclusion .......................................................................................... 334 INTRODUCTION Inconclusive debates over the scope of presidential power have erupted regularly throughout American history. The Bush administration’s claims of unilateral executive power were extremely assertive, but they were not unprecedented.1 These claims may be in remission with the advent of a new administration. However, their intellectual seeds remain, and government officials as well as judges will continue to struggle with these perennial issues. It is time to revisit the proper scope of presidential power. The prevailing doctrine of presidential power is contained in Justice Jackson’s celebrated concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case).2 Jackson concluded from the mixing and sharing of legislative and executive powers in the Constitution that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”3 He then offered his famous tripartite framework for analyzing the scope of presidential power: (1) when the President’s actions are expressly or impliedly authorized by Congress, his authority is “at its maximum;” (2) when the President acts and 1. To take two examples, President Franklin Roosevelt conducted a secret domestic surveillance program in violation of federal law and also established a military commission to try enemy combatants for war crimes. See generally Jack Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 CONST. COMMENT. 261 (2002); Neal Katyal & Richard Caplan, The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 STAN. L. REV. 1023 (2008). 2. 343 U.S. 579, 634 (1952). Jackson’s framework has been adopted by the Supreme Court, first in Dames & Moore v. Regan, 453 U.S. 654, 668–69 (1981), and very recently in Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), id. at 638–39 (Kennedy, J., concurring),
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