Inherent Presidential Power - Art II - the executive power SHALL be vested in a president of the President has certain explicit

LL be vested in a president of the President has certain explicit powers given directly by
what authority does POTUS Art I - all legislative powers herein granted U.S. [Hamilton argued distinction in language suggests prez has Constitution [Commander in Chief]
have w/o express SHALL be vested in a Congress of the authority not specifically delineated in the Constitution]. Vesting Clause likely source of some implicit unenumerated
constitutional or statuory United States · §3 provides President ?shall take Care that the Laws be faithfully powers - more power for foreign affairs v. domestic affairs.
authority? executed.?

Black Formalist/Originalist Opinion - Nondelgation Doctrine - Constitutional principle that

Executive order to seize mills NOT within president can only act under express Congress may not delegate its legislative power. Some
Despite willingness to infer existence authorization of Constitution ? strict
scope of prez executive authority ? not powers Congress cannot delegate to prez or to anyone.
of broad president authority, Supreme constitutional -bound to enforce laws within construction of executive power.
Court has adhered to one Frankfurther - look to
limits of the authority expressly granted to no ?inherent? presidential powers; prez?s Can Congress delegate authority? 2 Approaches
tradition as persuasive
over-arching limitation on presidential him by Const & cannot usurp lawmaking actions depend solely on text. Congress
authorty; Prez can't act in Functional Approach
power - the president may not make power of Congress by assertion of an considered giving him the inherent power
contravention of express -Look at how bill functions
laws, he may only carry them out unspecified aggregation of his specified but didn?t. Seizure order without
congressionl act or where -What is the broad purpose of the law?
[Youngtown Sheet v. Sawyer]. powers Congressional consent was clear
congress has done -Is this purpose in light of massive scope of fed govt consistent
usurpation of congressional lawmaking
Truman issued order directing govt nothing - by not granting with the theories of the framers?
Prez overstepped boundaries so SC can power; Constitution is specific in vesting
power to seize mills
seize most US steel mills to keep step in & assess validity of decision - lawmaking powers in Congress.
Congress has withheld
running after union gave notice of Dissent - Prez left powerless to act in Formal Approach
Marbury - cts have power to scruintze authority to do so.
emergency to preserve status quo til -Looks at structure of Constitution
nationwide strike - thought stopage actions of executive branch & invalidate
Congress can act, very time independent, -Does this alter Constitution's machinery? ie is the prez given
would jeopardize steel supply, war them. PQ doctrine - maybe legal question
immediate action needed most, executive legislative authority. OR does it violate bicameralism?
effort [Korean War]. but political act?
branch only branch by design that can act -Is it a constitutional amendment?
swiftly to meet national emergencies
Formalism & functionalism - endorsement of functional approach
emphasized by Jackson's concurrenced, arguments post New
Deal regulatory state incompatible w/ rigid formalistic sep of
powers in light of neew for nat govt w capacity to impose & enforce
detailed & expert regulation over complex industries free from
ordinary partisan political battles
Implicit Pure Silence; - SoP & indiv rights - one cheif justification for separation nat
Clear Disapproval, Less or No Pure Silence; but Implicit powers is preserve liberty.
Explicit Implicit Explicit
Implicit Rejecting the Historical Historical Acknowledg-
Prohibition Authorization Authorization
Prohibition Grant of Power Practice Practice ment
Increasing Executive Power
Youngtown 3 - Lowest Ebb - Prez power lowest when Youngtown 1 - max prez power - when
Youngtown 2- Zone of Twilight - Congress is silent ?
acting contrary to express or implied will of Congress. acting with express or implied
Presidential power is indeterminate, some authority
-Congress takes away ambiguous inherent powers ? authorization by Congress, presidential Policy concerns?
[express power + some unknown power]
Prez only has truly inherent executive powers in power is at its greatest [constitutional Concerned about broad, unchecked
-Acting in ?zone of twilight in which he and Congress
Constitution. power + granted Congressional power]. exec power & risk of tyranny -
may have concurrent authority (concurrent executive
Subject to Constitutional limitations [i.e. Congress can?t - If act unconstitutional, it?s because submission of exec to rule of law is
and congressional power) or where its distribution may
nominate someone to SCOTUS] - In order for the Constitution doesn?t give the essence of a democratic govt.
be uncertain.?
action to be upheld, the power must not be able to be government that power, not because of
- Highly fact dependent - actual test of power is likely to
restrained by Congress ? must be derived from the horizontal separation of powers
depend on present events & circumstances
Constitution directly
Steel Seizure was here - little question question
Congress could?ve authorized the seizures and such
power denies the same authority to the president

Choose 1 Model of Executive Authority,

Model 2 - President has inherent authority UNLESS he Model 3 - President MAY exercise powers outside of Model 4 - There are zones of inherent power where
explain why it is better than other interferes with or usurps the authority of another the Constitution UNLESS Congress disapproves Congress CANNOT limit presidential discretion [Vinson
approaches, then apply the approach - branch of gov?t [Douglas Concurrence] [Frankfurter, Jackson Concurrences] - Dissent] -
Pros: Consistent w/notion of gov?t of limited powers but Pros: Constrains executive; gives president power in Pros - Efficient; gives president power to act when
more flexible; constrains executive; precludes exercise emergencies/areas where Constitution is silent; limits necessary, like national security matters.
Model 1 - President has no inherent authority outside of arbitrary power; gives judiciary key roles of checking the courts in affecting presidential power Cons: Gives executive sweeping authority; contradicts
president?s power [which is a tenet of the American gov Cons: : Too much power to president or Congress notion of limited powers; disregards checks and
Constitutional or statutory authority [Black majority] -
checks and balances system]. (depending on how active/inactive Congress is); vague balances of Model 2.
Pros: Consistent w/notion of gov?t of limited powers;
constrains executive; precludes exercise of arbitrary Cons: Inefficient; makes weak president; president (how must Congress ?disapprove??); if Congress leans
needs to act in emergencies; constitution is silent on in same party/ideals as president, might not be any
power and ill action of president; framers intended to
important issues; less clear and predictable than Model real check on Presidential powers given the political
have limited powers.
Cons: Inefficient; makes president weak; president 1 given judiciary?s role. process that is polarized; checks and balances now left
-Important argument here on judiciary's role in govt - if to political process not an isolated, objective body (like
needs to act in emergencies ? especially foreign policy
you believe SC should have large check on power, SC).
issues; constitution is silent on important issues
Model 2.