The Implied Powers Presidency

• In Event: (Re)Evaluating Presidential Power

Abstract

Today, an energetic president seems to be an obstacle rather than an asset for the preservation of liberal constitutional government in the United States. The public bemoans the frequency of unilateral actions that circumvent the constitutional separation of powers. Perhaps nowhere is this fear more heightened than in the realm of war and emergency powers. If the presidency possesses power beyond its statutory authority to execute the laws, perhaps a despotic Commander-in-Chief may usurp the people’s representatives in Congress, degrading both liberty and national security through the use of military force. We might think of this type of injustice as the one citizens face from the abuse of power. However, in the rare event that a country has been attacked by a foreign nation, a second type of injustice may occur from the failure to exercise power in a timely manner that could have secured lives. The risk of a feckless governmental response makes citizens vulnerable to a second kind of injustice from inaction and delay.
The literature may be sorted into two groups with differing understandings of legal, constitutional, and even extra-constitutional power the president may exercise in crises. In the first group, legal scholars taking after Justice Jackson’s Youngstown concurrence argue that the absence of Congressional authorization hamstrings the president’s authority. This group effectively argues that the president may only “take care” to execute formal legal authority delegated to the president by Congress. If the president’s implied power is at its lowest ebb when Congress has yet to recognize an emergency or prescribe the executive’s response to an attack, it would seem that any independent executive action is extra-legal in nature. This theory of implied powers is not just underinclusive, but also overinclusive when one looks to the history of executive actions since Jackson’s opinion. Historically, since at least the middle of the twentieth-century, Congress increasingly delegated the executive with its share of constitutional functions, deferring to the judgment of one man alone to respond to these threats through whatever requisite means he deemed necessary.
The other group of scholars in the literature, mostly political theorists, take up Clinton Rossiter’s theory in Constitutional Dictatorship written in 1948 to argue that the law and emergencies are incompatible. We need not worry about the vices of Nixon-types, they say, because our only recourse when emergencies strike is to rely on the virtue of the executive to act outside or against the law in the name of the public good, taken after John Locke’s theory of prerogative power. These scholars’ informal theory of implied emergency powers argues that the executive possesses broad extra-constitutional powers that are not defeasible by Congressional statutes. In the presence of an emergency, the president may exercise an independent sphere of prerogative power beyond constitutional separation of powers that is only limited through reliance on the executive’s self- restraint. this comes at the cost of such power being dangerously susceptible to constitutional abuse by presidents who lack self-restraint. Ultimately, the reliability of either of these structural arguments is utterly feckless without a standard for when and how the president may appropriately exercise implied powers.
My paper seeks to supply a standard for evaluating the merits of implied presidential power after surveying the defects of both dominant approaches. I theorize a limited form of implied presidential power to respond in a defensive manner when the emergency constitutes a state of war. We may follow the constitutional logic of Alexander Hamilton and John Marshall in order to put reasonable limits on the relationship between necessary and proper functions of the executive power. Executing the express duties of the Commander-in-Chief clause, for instance, confers the president with implied powers to carry out his responsibilities in securing the national defense and directing the military in the case of an urgent and widespread emergency. From these thinkers’ understandings of implied powers, I turn to the meanings given by other Justices in the Youngstown opinion in order to survey which are most accountable to the text, structure, and meaning of implied presidential powers in American constitutionalism.

Author

• Garrett Jeffrey Jones, University of Wisconsin, Madison