Presidential powers Summary

  • Last updated on November 11, 2022

The formal constitutional and legal powers of the U.S. president.

The first, and in some sense the most important, of Supreme Court actions regarding the presidency arose very early in the constitutional history of the United States. In Marbury v. Madison[case]Marbury v. Madison[Marbury v. Madison] (1803), the seminal case that established the Court’s power of judicial review, the Court also had to address relations between the judicial and executive branches. It had to determine whether the secretary of state and, by implication, the president could be subjected to a court order or injunction. Chief Justice John Marshall’s opinion distinguished between the legal and political duties of the executive. Where the law requires an executive action, a court order can be issued and enforced; where the president’s duty is “political” and discretionary, courts may not intervene. The Court’s decision in Marbury, often reaffirmed, thus established the fundamental principle that the president and the executive branch of the government are subject to legal restraints. Such a rule is particularly important in governmental systems based on separation of powers, in which conflict between the branches of the government is common.

President Harry S. Truman (bottom row, center) visited the Supreme Court in 1945, meeting with justices (front row, left to right) Harlan F. Stone, Hugo L. Black, Felix Frankfurter; (second row) Stanley F. Reed, Harold H. Burton, Wiley Rutledge, Jr., Frank Murphy; and (third row, at left) William O. Douglas. During World War II, Truman put U.S. steel mills under federal government control when a strike seemed imminent. In 1952, the Court ruled that he lacked the power to do that.

(Library of Congress)

Article II of the U.S. Constitution is not specific on the extent of the president’s powers. The war and foreign affairs powers are shared with Congress; on the domestic side, Article II says that “the executive power shall be vested in a President of the United States” and that “he shall take care that the laws be faithfully executed.” However, it does not say exactly what the executive powers are. Consequently, exercises of presidential power have often brought about Court action.

The Court was called on several times to define the president’s power to remove federal officials from office. In Myers v. United States[case]Myers v. United States[Myers v. United States] (1926), the Court held unconstitutional a legislative provision that certain postmasters could not be removed without the consent of the Senate. Chief Justice William H. Taft’s opinion held that presidents must be able to select the officers who act under their direction. If they cannot, they could not properly be held responsible for the way in which the laws are executed. The Myers rule was later restricted to executive branch personnel in Humphrey’s Executor v. United States[case]Humphrey’s Executor v. United States[Humphrey’s Executor v. United States] (1935), in which the Court took the position that the president may not remove commissioners of independent regulatory agencies such as the Federal Trade Commission.

Presidential Powers Defined

The most important modern case regarding the president’s domestic powers is Youngstown Sheet and Tube Co. v. Sawyer[case]Youngstown Sheet and Tube Co. v. Sawyer[Youngstown Sheet and Tube Co. v. Sawyer] (1952). During the KoreanKorean War War, the steelworkers unions threatened to strike. To avert the possibility that the quantity of steel would be insufficient for military purposes, President Harry S Truman ordered Secretary of Commerce Charles Sawyer to seize the steel mills and operate them under government control. The steel companies brought action to enjoin the seizure. No law authorized the seizure, and Congress declined to pass one even after President Truman reported his action to it. By means of the Taft-Hartley ActTaft-Hartley Act of 1947, Congress had provided a procedure by which the president could seek a court order against the unions to prevent strikes. However, partly for political reasons, President Truman did not wish to invoke this procedure. The government argued that the sum of the executive and war powers of the president authorized the seizure in a national emergency.

The Court disagreed. By a 6-3 vote, the Court held that the seizure was beyond the president’s power. The opinion of the Court was delivered by Justice Hugo L. Black, who reasoned that the seizure amounted to lawmaking (the Constitution assigns the power “to raise and support armies” to Congress). Any exercise of presidential power must spring from either the Constitution or a law. Because no law authorized the seizure, Black turned to the Constitution to see if authority could be found there. The claim that the aggregate of presidential power supported the seizure was too broad and open ended; there seemed to be no limit to the powers that could be claimed under the guise of necessity. Consequently the seizure was declared unconstitutional.

Black’s analysis of the case was very formal. A more flexible opinion reaching the same result was submitted by Justice Robert H. Jackson. Jackson suggested that claims of presidential power fall into three classes. First, when presidents act in accordance with Congress’s will, they have all their own constitutional powers plus whatever powers Congress can delegate. Second, when presidents act in an area in which Congress has not, there is a “grey area” of presidential power, the extent of which may be defined by history, tradition, and the specifics of the situation. Third, when presidents act in contravention of Congress’s will, their power is at its minimum; they have only their constitutional powers minus whatever power Congress may have over an area of policy. Jackson saw the steel seizure case as falling into the last category. Consequently the president’s act in seizing the steel mills was unlawful. Jackson’s opinion has been recognized by subsequent courts as a precedent, almost as if it had been the majority opinion rather than an individual concurrence. Its flexibility and good sense have commended it to later justices, while Black’s opinion is sometimes seen as too narrow.

The Nixon Administration

There were more attempts to increase domestic presidential constitutional power during the administration of President Richard M. NixonNixon, Richard M. than in any other. Nixon made many new claims of constitutional privilege during his five and a half years in office. All but one of these was eventually decided by the Court, and in every one of these cases, the claim of presidential prerogative was rejected by the Court. The remaining case involving an attempt by President Nixon to expand the pocket-veto power was decided by the Court of Appeals for the Federal Circuit against Nixon, and his successor as president, Gerald R. Ford, declined to appeal to the Supreme Court.

In June, 1971, The New York Times began to publish the text of a secret Defense Department study popularly known as the Pentagon PapersPentagon Papers on the origin of the war in Vietnam. The Nixon administration brought action against the Times, asking for a court order to suppress the publication of the study. No other president had ever made an attempt to suppress newspaper publication. Other newspapers became involved in publishing portions of the study, and the multiple cases that resulted were quickly consolidated and argued before the Court. Treating the case as an emergency, the Court held, within four days of hearing the oral arguments, that the publication was protected by the First Amendment and that the government did not have the power to impose prior censorship on publication. The vote was six to three.

The Nixon administration also made extraordinary claims to presidential power in what it called “domestic national security” cases. Illegal wiretaps of the defendants in a bombing case had taken place; some of the recorded conversations were between the defendants and their attorneys, which violated attorney-client privilege. The administration refused to disclose these to the defense on the ground that the Fourth Amendment does not forbid warrantless wiretapping when a case involves domestic national security. The Court unanimously rejected this claim in United States v. United States District Court[case]United States District Court, United States v.[United States District Court, United States v.] (1972).

A claim by the Nixon administration that the president has the power to “impound” funds to decline to spend moneys appropriated by Congress was unanimously rejected by the Court in Train v. City of New York[case]Train v. City of New York[Train v. City of New York] (1975). Congress later attempted to grant the president that power by establishing a statutory line-item veto in 1996 during the administration of President Bill ClintonClinton, Bill. The Court rejected it in Clinton v. City of New York[case]Clinton v. City of New York[Clinton v. City of New York] (1998) as being beyond the powers granted to the president in the Constitution.

Another broad claim to executive authority was put forward by President Nixon at the time of Watergate. Nixon refused to surrender tapes of presidential conversations to the courts, claiming that they were protected by a broad and self-defined “executive privilege.” In United States v. Nixon[case]Nixon, United States v.[Nixon, United States v.] (1974) the Court unanimously rejected Nixon’s assertion of an inherent presidential authority to define the scope of his own privileges. Chief Justice Warren E. Burger’s opinion invokes the holding from Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.” Nixon was forced to release the tapes, which turned out to contain evidence that he had been part of a conspiracy to obstruct justice. He resigned immediately thereafter.

Foreign and Defense Policy

Foreign affairs and foreign policyIn the area of foreign and defense policy, the Court was much more favorable to broad constructions of presidential power. In United States v. Curtiss-Wright Export Corp.[case]Curtiss-Wright Export Corp., United States v.[Curtiss-Wright Export Corp., United States v.] (1936), Justice George Sutherland, writing for a unanimous Supreme Court, held that the “President alone has the power to speak or listen as representative of the nation.” The president’s special role in foreign affairs involves some powers implied but not explicitly granted in the Constitution. Many foreign affairs issues may have domestic legal impact, and where they do, the president’s decision is dispositive. One example of this is Dames and Moore v. Regan[case]Dames and Moore v. Regan[Dames and Moore v. Regan] (1981), in which the Court held that President Jimmy Carter’sCarter, Jimmy agreement with the government of Iran to settle cross-claims by U.S. and Iranian citizens against the two governments by means of an international tribunal had the effect of disqualifying U.S. courts from hearing the cases.

For many years it was thought that presidents had nearly complete personal immunity from lawsuits; indeed, during the Nixon administration, the Court held in Nixon v. Fitzgerald[case]Nixon v. Fitzgerald[Nixon v. Fitzgerald] (1982) that the president is absolutely immune from civil liability for his official acts. However, in Clinton v. Jones[case]Clinton v. Jones[Clinton v. Jones] (1997), the Court unanimously declined to extend that immunity to nonofficial acts. Consequently, presidents can be sued and forced to give depositions and testify in civil suits. In the Paula Jones case, this liability led directly to the impeachment of President Clinton on charges of perjury and obstruction of justice.

Further Reading
  • A good starting place is the collection of essays in Presidential Power: Forging the Presidency for the Twenty-First Century, edited by Robert Y. Shapiro, Martha Joynt Kumar, and Lawrence R. Jacobs (New York: Columbia University Press, 2000).
  • Although dated, the classic exposition of the president’s powers and the role of Court is Edward S. Corwin’s The President: Office and Powers (New York: New York University Press, 1957). Henry Abraham’s Justices and Presidents (New York: Oxford University Press, 1985) has a good discussion of the relation between the appointing process for justices and constitutional outcomes. The Plot That Failed: Nixon’s Administrative Presidency (New York: John Wiley, 1983) discusses Nixon’s claims for increased constitutional power. Robert Scigliano’s The Supreme Court and the Presidency (New York: The Free Press, 1971) is strong on the pre-Nixon relations between the Court and the presidency, as is Glendon Schubert’s The Presidency in the Courts (Minneapolis: University of Minnesota Press, 1957). J. W. Peltason’s Understanding the Constitution (New York: Harcourt Brace, 1997) has a very clear discussion of some of the leading controversies in the chapter on Article II of the U.S. Constitution. Another good discussion of presidential power may be found in The Supreme Court and the Powers of the American Government (Washington, D.C.: Congressional Quarterly, 1997) by Joan Biskupic and Elder Witt. Henry Paolucci and Richard C. Clark’s Presidential Power and Crisis Government in the Age of Terrorism (Smyrna, Del.: Griffon House for the Bagehot Council, 2003) looks at the new challenges to presidential power in the twenty-first century.

Appointment and removal power

Clinton v. City of New York

Clinton v. Jones

Curtiss-Wright Export Corp., United States v.

Dames and Moore v. Regan

Executive agreements

Executive immunity

Foreign affairs and foreign policy

Jackson, Robert H.

Marbury v. Madison

Nixon, United States v.

Pardon power

Separation of powers

United States District Court, United States v.

Youngstown Sheet and Tube Co. v. Sawyer

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