to the Constitutional Convention of 1787 gave
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
discussion. This might in part be due to the
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
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."
lack of attention given to the executive,
historian Jack Rakove called
the creation of the presidency the framers' "most
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
provides little hint that the president would
become as power 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
strongly advocated an executive with the power to
match the monarchs of
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
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