What are the "Inherent" Powers of the President?

Two recent episodes in our political life have exposed a deep rift between the Bush Administration and Congress over the proper scope of Presidential power.

First, as 2005 drew to a close, President Bush signed a defense appropriation bill that contained a categorical prohibition on torture and cruel, inhuman or degrading treatment of detainees by all U.S. personnel, anywhere in the world. But Bush simultaneously released a signing statement that purported to reserve the right to order the use of those interrogation techniques that were within his prerogatives as head of the "unitary executive branch" and as Commander in Chief.

Second, in their public defense of the President's approval of electronic eavesdropping within the United States in apparent violation of Acts of Congress, Administration officials and others have argued, among other things, that Congress lacked the authority to constrain the President in wartime espionage. On this view, even if the National Security Agency ("NSA") program of electronic eavesdropping violated the Foreign Intelligence Surveillance Act ("FISA"), the President still acted lawfully in authorizing it, because FISA itself is unconstitutional.

Common to both of these assertions is the notion that the President has certain inherent powers that Congress may not limit. That notion is true--as far as it goes. There are some powers of the President that cannot be limited by Congress.

But not every action that the President would be permitted to take on his own is therefore his to take in the teeth of a Congressional prohibition. We can, and should, distinguish between those inherent Presidential powers that are mere default powers--exercisable by the President even without Congressional authorization but nonetheless subject to Congressional override--and those inherent Presidential powers that are exclusive powers--unregulable by Congress. The arguments of the Administration and its defenders conflate these very different concepts.

The Constitution commits some functions to exclusive Presidential control. For example, suppose that Congress wished to address the recurrent risk that on his way out of the Oval Office, a lame-duck President would grant pardons to his well-connected but otherwise undeserving friends. Congress might therefore enact a statute forbidding the issuance of Presidential pardons during the last year of a Presidential term of office.

Yet such a law would be clearly unconstitutional because the Constitution grants to the President the "Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment," and grants to Congress no role whatsoever with respect to pardons. Thus one must conclude, as the Supreme Court did in the 1871 case of United States v. Klein, that Congress cannot limit the grounds or terms on which a President grants pardons.

Similarly, the President's authority to seek and receive advice from Cabinet officials appears to be another power Congress cannot limit. Suppose Congress believes the President is paying insufficient heed to the advice of his Secretary of State, while granting his Secretary of Defense too great a role in matters of international diplomacy. Could Congress require that the President receive and read daily briefings from the Secretary of State?

Surely not, for the Constitution empowers the President to "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." It is for the President, not Congress, to decide whether and when to seek the written opinions of the members of his Cabinet.

In advancing the argument that Congress may not limit the President's powers as Commander in Chief, the Administration and its defenders draw a false analogy to bona fide exclusive Presidential powers like the pardon power and the power to demand written advice from Cabinet officials.

For with respect to war, the Constitution assigns to Congress numerous powers that operate concurrently with the President's powers.

That is not to say that the President lacks inherent powers as Commander in Chief. For example, suppose Congress has exercised its power to raise and support armies but has failed to prescribe rules for their discipline. Surely no one would doubt that the President may then issue orders concerning insubordinate soldiers and deserters. His power as Commander in Chief carries with it the incidents of authority necessary to command effectively.

But inherent Presidential authority to prescribe discipline for the armed forces is only a default setting. It can be changed by Congress.

How do we know that? Because the Constitution expressly grants to Congress the power "[t]o make Rules for the Government and Regulation of the land and naval Forces."

This Congressional power would not be worth the parchment it's written on, were the President able to flout any and all rules and regulations Congress enacted.

The Administration claims that the President has inherent authority to order wartime warrantless surveillance of American citizens as Commander in Chief.

That claim is probably correct, although the Supreme Court has never squarely rejected the argument that such surveillance violates the Fourth Amendment.

But even if we put aside any Fourth Amendment objection, there is a world of difference between warrantless surveillance conducted on the President's own authority, and such surveillance conducted in violation of a Congressional prohibition such as FISA.

For if the President's default power to order warrantless surveillance stems from his inherent default authority as Commander in Chief of the armed forces, then surely the specific authority of Congress, expressly granted by the Constitution, to prescribe rules and regulations of those same forces can change the default.

(To be sure, one might object that the Congressional power to write rules and regulations for the armed forces does not apply to the NSA, because the NSA is a civilian rather than a military agency. But if so, then the President likewise lacks authority over the NSA as Commander in Chief. And in any event, Congressional power to create the NSA in the first place surely includes the subsidiary power to write rules constraining the agency. If not, then nearly all of modern administrative law is unconstitutional.)

Accordingly, whatever power the President has to order wartime warrantless surveillance of Americans can, constitutionally, be limited by Congress. It is a default power, not an exclusive power.

No Inherent Presidential Power to Override Congressional Limits on Methods of Interrogation

The Administration's claim of a legal right to resist Congressional limits on methods of interrogation is no stronger than its claims with regard to warrantless surveillance. Here, too, the Constitution adopts a strategy of default Presidential power subject to Congressional override.

Suppose Congress wrote no rules governing the treatment of captured enemy soldiers, and suppose further that neither the Geneva Conventions nor any other principle of international law regulated their treatment. In such circumstances, the President, as Commander in Chief, would surely have authority to issue orders governing their treatment, for as the Supreme Court recognized in the 2004 case of Hamdi v. Rumsfeld, the detention of enemy combatants is a standard incident of the conduct of war.

But the President's inherent authority in this area is only a default rule. The Constitution expressly grants to Congress the power to "make Rules concerning Captures on Land and Water." A statute prohibiting torture and other forms of cruel, inhuman or degrading treatment of captives falls squarely within this language. The President's claim to be able to override it as Commander in Chief thus directly contradicts the express and unequivocal terms of the Constitution.

How the Administration and its Defenders Have Mischaracterized the Steel Seizure Case in the Public Debate

In important respects, the analysis I have provided here follows the framework set out by Justice Robert Jackson in his concurrence in the 1952 Steel Seizure Case. Jackson classified cases involving the scope of Presidential authority as falling within three broad categories: (1) Cases in which the President acts pursuant to a grant of power from Congress; (2) in which the President acts on his own, neither authorized by Congress nor prohibited from acting by Congress; and (3) in which the President acts in violation of a Congressionally-enacted prohibition.

The Steel Seizure Case itself fell within category two: It was a case in which the President acted on his own, with Congress not having spoken directly to the exercise of power at issue. Although Congress had enacted legislation governing labor relations, it had neither expressly authorized nor prohibited President Truman's seizure of the steel mills. Nonetheless, because the majority and Justice Jackson found that the President lacked this power on his own, the Court invalidated the seizure. The Court did not even find default power in the President.

Some of the Bush Administration's defenders have questioned the validity of Jackson's category three, into which the conflicts over electronic surveillance and treatment of enemy combatants appear to fall.

If the President has the inherent authority to act in a given sphere, they ask, then how can a Congressional prohibition make any difference?

The answer should now be obvious: Some forms of inherent Presidential power are mere default powers. An Act of Congress purporting to limit the pardon power would be of no effect because the President's authority with respect to pardons is exclusive. But as to war powers, the Constitution quite clearly gives Congress authority to constrain the President.

And that is perfectly consistent with Justice Jackson's Steel Seizure concurrence. He wrote of category three: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

The key phrase here is "constitutional powers of Congress over the matter." Because Congress has no constitutional powers over pardons, even in category three, the President's will prevails. But where Congress does have constitutional power, as with respect to war, Justice Jackson explained: "Courts can sustain exclusive presidential control . . . only by disabling the Congress from acting."

Ultimately, the flaw in the Bush Administration's repeated conflation of default Presidential powers with exclusive powers is not that it contradicts my analysis, or even that it contradicts Justice Jackson's. The problem is that it makes a mockery of much of the Constitution the President has sworn to uphold.

On the face of it, it appears that they are.

Another example could be the Nuernburg trials. They were a Military Commission. The Chief Justice of the US Supreme Court presided over the Tribunal.

People are now criticizing him because they didn't use the standard of "beyond reasonable doubt" in convicting many and executing many.

It was not appropriate to use the standards of "beyond reasonable doubt" because many who would be witnesses had died in the concentration camps, or were scattered all over the world as refugees. Also many of the records had been destroyed in the war damages.

They used the standards set in the Laws of War, which were appropriate to the conditions.

Was the Chief Justice of the United States dishonorable because he participated in a Military Commission and used the appropriate standards?

[A more pertinent question is whether they're less independent than judges.]

Do you imply that someone who is sworn to uphold the constitution is dishonorable enough to prostitute themselves?

Judges are kept independent for a reason. The founders judged rightly that it's not a good idea to rely only on the personal honor of those who take the oath. If we could, then there would hardly be any need for separation of powers and checks and balances. All that would be necessary is just a few people to be put in charge, take the oath, and then trust them to do what's right from there.

[...the constitutionality of FISA would depend on what part of the federal code it falls under?]

Yes, as long as they confine themselves to the part of the constitution that does not infringe on the separation of powers.

Then I think we're at an impasse on this point. I can't see how it is that the same legislative language that would be constitutional when it's in one section of the federal code, would not be constitutional if it's in another. Law is law. Whatever it requires, it requires, as long as its language doesn't conflict with another law (such as the Constitution).

The founders judged rightly that it's not a good idea to rely only on the personal honor of those who take the oath.

They also recognized that it is impractical to have an independent judiciary in war time conditions, and so provided a separate set of laws and method of applying those in the actual conditions that prevail in war.

That is why the Military Commissions and Laws of War were provided. They should be used as provided by the Constitution.

It certainly is not unconstitutional to follow provisions of the constitution, or is it?

...as long as its language doesn't conflict with another law (such as the Constitution

That is the rub. As soon as a law, passed by congress, or is interpreted in such a way as to violate the separation of powers, it is unconstitutional.

The FISA court of review in its dicta was advising both the FISA Court and the legislative branch to tread lightly when they get close to that divide.

I can't see how it is that the same legislative language that would be constitutional when it's in one section of the federal code, would not be constitutional if it's in another.

The laws of war are a general outline of how a war is run. Congress does not have authority to specify what tactics are used when they authorize Military Force.

The object of Military Force is to prevail. Force means just that. It is not democratic nor does it require the permission of those it is used against. In civil terms it is a wholesale violation of the opponent's "rights".

It is intended to be that, and is why the Constitution does not provide the normal "rights" to the opponents of that Force. The opponents are Forced to comply. It is not intended that they have any choice in the matter.

As such, any "law" that infringes on the operation of the Commander in Chief in the operation of the Military Force is unconstitutional because of the Separation of Powers.

Congress can rescind the authorization to use Military Force, or refuse to fund it, but they cannot step in and command the operation.

As soon as a law, passed by congress, or is interpreted in such a way as to violate the separation of powers, it is unconstitutional.

I can understand the idea that a law might conflict with the Constitution, but my challenge was to the notion that the same law would conflict with the Constituion when it's in one area of the federal code, but not conflict when it's in another. It's counterintuitive, to say the least.

Congress does not have authority to specify what tactics are used when they authorize Military Force.

It did just that when it authorized the Quasi-War with France in 1798. It limited the executive to only seizures of French shipping. And SCOTUS confirmed in Bas vs Tingy that Congress has the power to do this.

Congress can rescind the authorization to use Military Force, or refuse to fund it, but they cannot step in and command the operation.

But they can limit it. Providing rules and restrictions for something is not the same as commanding it. Congress doesn't run businesses when it provides rules of commerce, and it doesn't command the military when it provides rules of war.

The Supreme Court ruled that a person has to be given a hearing before a Military Tribunal to determine if they are an Enemy Combatant.

Rasul v. Bush, 542 US 466 (2004)
http://laws.findlaw.com/us/000/03-334.html

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

Citizens of Britain, Australia and Kuwait
Captured in Afghanistan
Classified as "enemy combatant"
Held at Gitmo
Asserted a right of access to United States courts

United States courts have jurisdiction under 28 USC 2241 to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay

Congress amended 28 USC 2241 (Graham amendment) to limit detainee access to United States courts

The Padilla case is also pending, and relevant (citizen of US, "captured" at O'Hare, held other than at Gitmo)

Hamdan v. Rumsfeld will be heard by SCOTUS on March 28th. Summary and current "status" ...

Citizen of Yemen
Captured in Afgahnistan
Classified as "enemy combatant"
Held at Gitmo
Asserted entitlement to prisoner of war status

Military commissions are legitimate forums to try enemy combatants because they have been approved by Congress,
The 1949 Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies,
Even if the Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against al-Qaeda that is not between two countries, it guarantees only a certain standard of judicial procedure--a "competent tribunal"--without speaking to the jurisdiction in which the prisoner must be tried,
Under the terms of the '49 Convention, al Qaeda and its members are not covered.

I can't see how it is that the same legislative language that would be constitutional when it's in one section of the federal code, would not be constitutional if it's in another...

If it is in the Civil Law, it would be constitutional.

If it is intended to regulate how the Commander in Chief exercises his authority to use Military Force or defend the country, it would be unconstitutional.

Note that the President takes an oath to defend the country, the congress does not.

Information gathered would not be admissible in civil court, but could be used in a Military Commission.

Spies and saboteurs (unlawful enemy combatants) can be tried by Military Commission whether a citizen or not.

And SCOTUS confirmed in Bas vs Tingy that Congress has the power to do this.

OK, But they did not put restrictions on intelligence gathering in the Authorization to use Military Force.

I suppose they could amend the authorization and add it now, but I think the political fallout would be such that they won't do it.

Bush could veto it, so it would have to be by 2/3 of both houses. Unlikely.

Military commissions are provided by the Constitution? Where?

They are under the part that says about the Commander in Chief. Article 2, section 2

They are provided under Article 1, section 8 where the poser of Congress to provide rules for the armed forces.

They are in the Laws of War, which were passed by Congress and signed by the President in the 1700s, which regulate how wars are run.

Military Commissions or Tribunals are nothing new.

I think it's assuming to much to just say flat out that they're "provided by the Constitution", as if that's a plainly obvious fact. If you want to argue that's the right way to interpret the Constitution, that's one thing, but these commissions are not provided for in the same way that the civilian court system is provided for. And since there's a danger that these commissions can undermine the civilian court system as well as the full panoply of checks and balances that the Constitution sets up, claims of constitutionality for these things should not be made lightly, and ought to be constantly reevaluated.

The Administration claims that the President has inherent authority to order wartime warrantless surveillance of American citizens as Commander in Chief.

That claim is probably correct.....

No reason to read on, even the author believe the C-in-C has the authority to PROTECT & DEFEND the United States of America.

The utter obsurdity of the NOTION that the President has the authority to use any and all means to defend the United States of America against our enemies, which INCLUDES using NUCLEAR WEAPONS to KILL the ENEMY, but does NOT have the authority to listen to the enemy's phone calls, leaves ONE speechless!!

the first 10 Amendments to our Constitution (Bill of Rights) are restrictions on the Government, and are not limited to US citizens.

That is true except for unlawful enemy combatants, who fall under the Laws of War which do not contain any of the first 10 amendments or right of habeas corpus.

The Laws of War apply to both citizen and non-citizen alike.

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