Implied Executive Powers
By Samuel Strom, J.D. | Legally reviewed by Edward Maggio, Esq. | Last reviewed August 02, 2024
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Article II of the Constitution enumerates the president's powers. However, the Supreme Court has developed a framework for determining other powers the president possesses based on those outlined in Article II.
Article II of the U.S. Constitution delineates the powers and duties of the executive branch. The Supreme Court has construed Article II, Section 2, Clause 3, as grounding the president's implied powers.
The article discusses the concept of implied presidential powers, starting with a list of the president's express powers, followed by an explanation of their implied powers, and concluding with a discussion of Supreme Court cases addressing implied presidential powers.
Express Executive Powers
Article II of the Constitution enumerates several executive branch powers. These powers limit the president and balance and check the other branches.
Article II, Section 2 contains the vesting clause. It grants the President of the United States the executive power. Article II also spells out the presidential powers and duties, including the following:
Faithfully execute the laws
Swear fidelity to the Constitution of the United States
Requiring their cabinet officers to "provide written opinions on subjects relating to their duties"
Act as commander in chief of the armed forces (e.g., the Army and Navy)
The power to pardon federal criminal offenses
Commission executive officers
Receive ambassadors and public ministers
The power to nominate "Officers of the United States," ambassadors, and federal judges
Negotiate treaties (subject to congressional approval)
The power to veto proposed legislation
Give Congress information about the state of the Union
The House of Representatives and the U.S. Senate have several powers that check presidential powers.
For example, the president has the power and duty to execute the laws faithfully. However, the Constitution limits this power based on congressional authorization. In other words, the scope of the executive power to faithfully execute the laws depends on Congress's decisions.
As another example, the president can veto any legislation Congress sends them. However, Congress can override a president's veto if two-thirds of Congress votes to approve the legislation.
The legislature's other checks on the President of the United States include the following:
Congress has the power of impeachment. This allows Congress to remove the president from office if it convicts them of treason, bribery, or "high crimes and misdemeanors."
Although the president is the commander in chief, only Congress can raise and fund armies.
The President can propose treaties with other countries. However, most matters regarding foreign affairs are subject to the consent of the Senate.
Read Article I, Section 8 for a complete list of the legislature's lawmaking powers and checks. FindLaw also has articles on the separation of powers in the U.S. federal government.
Implied Executive Powers
The Constitution spells out the limits of the president's powers. However, the Supreme Court has ruled on cases where the president has acted within what they believed were their "implied powers."
The Constitution does not provide any reference to implied presidential powers. Generally, presidents who rely on their implied powers do so based upon the Constitution's grant of express powers. They typically reason that the express powers are broad and authorize their actions.
The judiciary typically determines whether the president has the implied power to act. The Supreme Court has established a framework for determining this.
Youngstown Sheet & Tube Co. v. Sawyer
The leading case on the president's implied powers is Youngstown Sheet & Tube Co. v. Sawyer (1952).
In 1950, the United States entered the Korean War. In late 1951, labor relations threatened to shut down steel manufacturing in America. On April 4, 1952, United Steelworkers of America gave notice that they were planning to strike.
In response, President Harry S. Truman issued Executive Order 10340. The Order commanded Secretary of Commerce Charles Sawyer to "take possession" of the steel mills and keep them operational. Truman relied on his commander-in-chief powers to justify the Order, arguing that a shutdown would endanger the United States of America.
The steel mills' owners filed a lawsuit in federal court challenging the Order's constitutionality. The U.S. District Court ruled in favor of the owners and issued an injunction against the seizures. The Court of Appeals stayed the injunction, and the Supreme Court granted a review of the case.
The Supreme Court held that Truman's Order was unconstitutional and that the Commander in Chief Clause did not allow Truman to seize private businesses unilaterally.
The Court noted that although the president had the power to wage war and execute laws, the executive power did not allow him to make laws. Congress had not passed a law allowing the president to seize the steel mills. Therefore, the Court ruled he could not do it on his own.
The Supreme Court also shut down Truman's argument that he had the inherent power to seize the steel mills to keep the United States safe during the war. The Court held that neither the Constitution's grant of executive power nor the Commander in Chief Clause authorized the president to do so without congressional authorization.
Youngstown Concurrences
Two concurring opinions in Youngstown are significant regarding the executive's implied powers. Justices Robert H. Jackson and Felix Frankfurter both opined on how courts should consider cases involving implied presidential powers.
Both Jackson and Frankfurter agreed that Truman could not seize the steel mills. However, constitutional scholars David Dreisen and William Banks point out that the concurrences "go out of their way to create bases for judicial implication of presidential power in future cases."
Moreover, as constitutional scholars Michael Stoke Paulsen and Luke Paulsen note in The Constitution: An Introduction (2015), the Supreme Court has cited Justice Jackon's concurrence "in every significant Supreme Court decision" regarding the balance of power between the president and Congress's powers, the scope of the commander in chief clause, and foreign affairs.
Justice Jackson's Concurrence
Justice Jackson's opinion in Youngstown is likely the most influential on the president's implied powers. It focuses on the relationship between executive powers and Congress' lawmaking powers.
The concurrence set out the following framework applicable to implied powers cases:
If Congress has expressly or impliedly authorized the president to act, the president's power is "at its maximum." In such cases, the president's actions are "presumptively constitutional."
When Congress has neither expressly authorized nor denied a president's ability to act, whether the president has the implied power to act depends on the "imperatives of events and contemporary imponderables." In other words, Justice Jackson opined that when Congress is silent about an action, courts can consider the surrounding circumstances when determining its constitutionality.
If the president takes an action "incompatible with the express or implied will of Congress," the court should only uphold it if they have express Constitutional authority to act.
As Dreisen and Banks note, Justice Jackson's concurrence "suggests that the courts may imply the existence of a presidential power from either congressional silence or implied congressional consent." However, if Congress has expressly or impliedly opposed the action, a president will likely not prevail on an implied powers theory.
Justice Frankfurter's Concurrence
Justice Frankfurter's opinion focused on the Constitution's text and the tradition (if any) of a challenged action. He felt that the judiciary could not solely rely on the Constitution's text.
His answer was to look at the issue's tradition. He cited 16 other times when the executive branch seized private businesses. In each instance, Congress had authorized the seizure and placed limits on it.
Based on this "systematic, unbroken, executive practice," he opined that the president had implied powers. However, the president can only utilize these powers when acting within the authorization of Congress. Moreover, the president is required to act in good faith.
Compare Justice Frankfurter's concurrence to Chief Justice Frederick Vinson's dissent. Chief Justice Vinson argued that President Franklin D. Roosevelt's actions during World War II satisfied the "tradition" prong of Frankfurter's concurrence. There, Roosevelt seized an aviation company and coal mines without authorization from Congress. Although two other Justices agreed with Vinson, their argument ultimately failed.
Post-Youngstown Supreme Court Cases
Justice Jackson's framework for implied powers cases provides courts guidance for determining whether a president's actions are constitutional. The following cases provide further information about how the Supreme Court has interpreted the executive's implied powers.
Medellín v. Texas
In Medellín v. Texas (2008), the Supreme Court held that the president could not enforce a treaty against the states without congressional authorization. The Court returned to Jackson's framework in Youngstown to analyze the case.
The case involved a Mexican national, Jose Ernesto Medellín. He was sentenced to death in 1997 following a conviction for the rape and murder of two teenagers in Texas. In 2003, he filed a motion for postconviction relief. He alleged the United States had failed to inform him of his rights under the Vienna Convention.
The United States ratified the Vienna Convention in 1969. The Vienna Convention allows detained foreign nationals to contact their consulate for assistance.
A U.S. District Court denied Medellín's petition, and he appealed. While his appeal was pending, the International Court of Justice (ICJ) determined that the United States had violated the Vienna Convention. The ICJ held the U.S. had failed to inform 51 Mexican nationals, including Medellín, of their rights. It ruled that the U.S. had to review and reconsider the sentences of the 51 Mexican nationals "without regard to state procedural default rules."
The Fifth Circuit Court of Appeals denied Medellín's certificate of appealability. It held that the Vienna Convention "did not confer individually enforceable rights." It also relied upon another Supreme Court case, which held that "Vienna Convention claims are subject to procedural default rules, rather than by the ICJ's contrary decision."
The Supreme Court granted review of the case. Before it could review the case, President George W. Bush issued a memorandum. He said the U.S. would discharge its obligations under the ICJ's ruling. In doing so, he ordered state courts to conform with the ICJ's ruling. In other words, he attempted to enforce the treaty and ICJ's decision against the states.
Based on the memorandum, Medellín filed a second application for habeas relief. The Texas Court of Criminal Appeals denied the application. It concluded that neither the ICJ's decision nor the memorandum "was 'binding federal law' that could displace the State's limitations on the filing of successive habeas applications."
The Supreme Court again granted a review of the case. It ruled that the Vienna Convention was not self-executing and did not bind the states absent an act of Congress. Therefore, it upheld the Texas Court of Criminal Appeals' denial.
The Court held that the president could not enforce a treaty against the states without congressional authorization. The Court noted that Congress had neither expressly denied nor authorized a president to enforce a treaty against the states. Therefore, the Vienna Convention did not bind the states.
The case falls under the second category of implied powers that Justice Jackson noted in Youngstown. He noted that Congress had previously passed laws allowing the executive to seize private property. However, Congress was silent about the specific seizure of steel mills. Therefore, the president did not have the authority to seize the mills.
In Medellín, the Court noted that Congress was silent about whether the president could enforce a treaty (and the ICJ's ruling) unilaterally against the states. The Court held that Bush could not do so without an indication that Congress gave him this power.
In so ruling, the Court stayed consistent with Justice Jackson's concurring opinion in Youngstown. However, a subsequent case saw the Supreme Court stray from the Youngstown framework. This opened the door to the enhancement of implied presidential powers.
Zivotofsky v. Kerry
A 2015 Supreme Court case dealt with the third category noted in Jackon's concurrence. In Zivotofsky v. Kerry (2015), Congress was not silent regarding the issues in the case. However, the Supreme Court ruled the president had the implied power to act. As Dreisen and Banks note, the case "provides an especially telling example" of how the Court weighs congressional views in such cases.
The case involved a federal statute regarding citizenship and government documents, including passports. It allowed American citizens born in Jerusalem to request the Secretary of State to list Israel as their birthplace.
The issue was whether the law interfered with the president's power to recognize foreign states.
The Court noted that the case fell within the third category Jackson identified in his Youngstown concurrence. Congress addressed the issue by passing the law. The president denied citizens' requests to list Israel as their birthplace. As Jackson noted, in such circumstances, a president's power "lies at its lowest ebb."
The Court acknowledged that Congress has the authority to issue passports. However, Article II gives the president the power to receive foreign ambassadors, which, the Court said, gives the president the sole power to recognize foreign governments.
The Court held that the president's implied power prevailed over Congress's express act. It determined that the law was unconstitutional because it claimed the president's sole authority to recognize foreign nations. It also "interfered with a presidential policy of neutrality toward Jerusalem's status."
Justice Anthony Kennedy wrote the majority opinion. He noted that the Constitution's text and structure gave the president the power to recognize foreign nations and governments. He also wrote the following:
"Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. ... Recognition is a topic on which the Nation must 'speak ... with one voice.' That voice must be the President's."
As Dreisen and Banks note, the Supreme Court's decision "casts doubt" on the theory that an act of Congress plays "a major influence" in cases involving implied presidential powers. They conclude that the "modern Supreme Court's implied power jurisprudence usually favors enhancing presidential power at the expense of Congress."
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