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."
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.
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.
Youngstown Sheet & Tube Co. v Sawyer (1952)
New York Times Co. v. United States (1971)
Dames & Moore v Regan (1981)
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.
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
War and Treaty Powers