The delegates to the Constitutional Convention of 1787 gave surprisingly little attention to the executive branch of government. In contrast to the protracted debates over the powers of Congress, the powers of the president were defined fairly quickly and without much discussion. This might in part be due to the reluctance of delegates to offend George Washington, the presiding officer of the Convention, and the man all delegates assumed would be the nation's first president. As a result, one can study Madison's Notes of Debates without ever reaching a clear understanding of the scope of the authority the framers intended to give the executive. Justice Robert Jackson, commenting on the unclear Convention record, wrote that it was "almost as enigmatic as the dreams Joseph was called upon to interpret for the Pharaoh."
Despite the lack of attention given to the executive, historian Jack Rakove called the creation of the presidency the framers' "most creative act." In Article II of the new Constitution, the framers offered the world something entirely new: a chief executive whose power came from the people rather than heredity or force. The Constitution, however, provides little hint that the president would become as powerful as he has in modern times. The framers obviously assumed that the legislative branch would be much more influential. Madison wrote that it would "rarely if ever happen that the excecutive constituted as ours is proposed to be would have firmness enough to resist the legislature." Among the delegates, only Alexander Hamilton strongly advocated an executive with the power to match the monarchs of Europe.
Over the nation's long history, with only short interruptions, power has flowed increasingly to the Executive Branch. The reasons for this are numerous, but include the successful exercise of power by ambitious presidents from Lincoln to the two Roosevelts, the growth of the administrative state in the 20th century, and the realization that Congress is ill-suited compared to the President to make timely responses to national security threats.
New York Times Co. v. United States (1971)
Medelln v Texas (2008)
Zivotofsky v Kerry (2015)
Our readings include four cases dealing with the breadth of executive power. Youngstown Sheet & Tube Co. v Sawyer (1952) arose when President Harry Truman, reponding to labor unrest at the nation's steel mills during the Korean War, seized control of the mills. Although a six-member majority of the Court concluded that Truman's action exceeded his authority under the Constitution, seven justices indicated that the power of the President is not limited to those powers expressly granted in Article II. Had the Congress not impliedly or expressly disapproved of Truman's seizure of the mills, the action would have been upheld. Justice Jackson, in a concurring opinion, outlined a tripartite test for determining whether a president is constitutionally exercising his impiled powers. Jackson's test has been used by the Court in subequent cases involving the exercise of executive power. [Note for UMKC law students: Harry Truman took "Constitutional Law" at our law school--he got a "B" in the course.]
In 1971, the Nixon Administration, even though lacking any statutory authority to do so, went to court to stop publication of "the Pentagon Papers," a series of accounts based on a stolen, classified document entitled, "The History of U. S. Decision-Making on Viet Nam Policy." The Administration argued (among other things) that publication would threaten national security because other nations would be reluctant to deal with the U. S. if their dealings couldn't be kept secret. Acting with unusual haste, the Court in New York Times v United States concluded that a prior restraint on publication of excerpts from the Pentagon Papers violated the First Amendment. In a key opinion, two concurring justices indicated that they might have upheld the injunction if the Executive Branch's action had been supported by a narrowly drawn congressional authorization.Dames and More v Regan (1981) considered the constitutionality of executive orders issued by President Jimmy Carter directing claims by Americans against Iran to a specially-created tribunal. The Court, using a pragmatic rather than literalist approach, found the executive orders to be a constitutional exercise of the President's Article II powers. The Court noted that similar restrictions on claims against foreign governments had been made at various times by prior presidents and the Congress had never in those incidents, or the present one, indicated its objection to the practice.
In Medelln v Texas (2008), the Court considered whether President Bush had the power to order Texas courts to reopen a criminal case after the International Court of Justice issued an order to that effect, finding that Texas officials had (inconsistent with the Vienna Convention) failed to notify Medelln, a Mexican national, that he had the right to contact the Mexican consulate after his arrest. The Court held that the president lacked the constitutional authority to turn a non-self-executing treaty into a treaty that effectively bound state officials.
Ari Zivotofsky, with his son Menachem, outside the Supreme Court. (AP photo)
Zivotofsky v Kerry (2015) considered the constitutionality of a federal statute that required the State department to record on passports the birthplace of American citizens born in Jerusalem as "Israel." The State Department, however, refused the request of the parents of Manachem Zivotofsky, born in Jerusalem, to record their child's birthplace as "Isreal" and instead identified his birthplace only as "Jerusalem." (The State Department takes this position to avoid offending America's Arab allies.) Writing for the Court, Justice Kennedy found the statute to be a violation of Article II. Kennedy noted that the Article II gives the President the power to receive foreign ambassadors and recognize foreign states, as well as the power to make treaties and appoint ambassadors. The Court concluded that the 2003 Foreign Relations Authorization Act contradicts or substantially intrudes on the Executive's power to recognize states and, therefore, was unconstitutional. Chief Justice Roberts, joined by Justice Alito, argued in dissent that the Executive power claimed here was not "conclusively and preclusively" granted to the Executive Branch and therefore was subject to regulation by Congress. Justice Scalia also dissented.
The signing of the Louisiana Purchase treaty
Thomas Jefferson read the powers of the Constitution narrowly. As Secretary of State under President Washington, Jefferson argued, unsuccessfully, that Constitution prohibited the establishment of a national bank or federal assumption of state debts. A decade later as President,
Jefferson worried whether the Constitution provided him the power to annex new territory--specifically, the Territory of Louisiana, which France offered to the United States for purchase. Writing to a friend at the time, Jefferson expressed doubts about whether the Constitution enabled him to acquire the extensive new lands streching across the vast middle of the continent. In the end, however, the Louisiana Purchase was too great an opportunity to pass up. Jefferson's view of federal power became somewhat more expansive: he concluded that the Constitution implicitly allowed the United States to acquire territory.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years....
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
President Harry Truman announcing the seizure of steel mills on April 8, 1952
Inland Steel president Clarence Randall responds to steel mill seizure
2. In your opinion, does the Executive Branch today have too much power relative to the other two branches of government? Why or why not?
3. Do you think any specific recent exercises of presidential power have been problematic?
4. Justice Jackson's concurring opinion in Youngstown is often cited. What do you think of his analysis, which suggests that an exercise of presidential power is highly dubious when it conflicts with congressional action or policy, least dubious when it is consistent with congressional action or policy, and within a questionable "twilight zone" when congress has not spoken at all on the issue?
Further Exploration of the Constitution & the Presidency: Separation of Federal Powers
Separation of Federal Powers
War and Treaty Powers
Was the Emancipation Proclamation Constitutional?
Congress, in July 1862, passed and Lincoln signed the "Second Confiscation Act." It liberated slaves held by "rebels," and was a step taken to undermine the Confederacy's war effort. The Emancipation Proclamation went further.
Lincoln first discussed the proclamation with his cabinet in July 1862.... The final proclamation was issued in January 1863. The Proclamation declared as permanently freed all slaves in all areas of the Confederacy that had not already returned to federal control by January 1863. Although implicitly granted authority by Congress, Lincoln used his powers as Commander-in-Chief of the Army and Navy, "as a necessary war measure" as the basis of the proclamation.
The Proclamation freed the slaves in the areas of the South that were still in rebellion. Practically, it initially freed only some slaves already behind Union lines. However, it effects spread as the Union armies advanced into the Confederacy.
The Emancipation Proclamation also allowed for the enrollment of freed slaves into the United States military. During the war nearly 200,000 blacks, most of them ex-slaves, joined the Union Army. Their contributions gave the North additional manpower that was significant in winning the war. [Wikipedia]