[SOUND] I'm now at the fourth major part of my lecture. I'm looking at the federal executive power. Article 2 of the Constitution creates the presidency and defines the authority of the executive branch of government. I want to focus on three major questions in discussing the federal executive power. First, I want to focus on the issue when may the president act without express constitutional or statutory authority? As I'll suggest, throughout American history. Including today, some of the most important constitutional questions about that issue, when can the President act if there's not a constitutional or statutory provision? The second I want to talk about, what are the constitutional problems posed by federal administrative agencies. One of the things that the framers did not foresee was the need to create federal agencies that possess legislative power, that do with the rule making. Executive power, the ability to prosecute those that violate the rules and also judicial power. The ability to impose punishments. There's such an array of federal agencies today. How do we deal with the constitutional issues that's posed by them? And then third and finally discussing executive power. I want to talk about what's the wording of the President when it comes to foreign policy? How should decision making be allocated when it comes to international affairs? So let me begin then, with the first of these topics. When may the president act without constitutional or statutory authority? The Constitution is relatively brief in Article 2 in delineating the powers of the President. It's just so many powers the constitution is just silent. Does the president have the power to recognize foreign governments? The constitution doesn't say. Does the president have the authority to issue a neutrality proclamation when other countries are at war? President George Washington did this early in American history, when England and France were at war but the Constitution doesn't mention it. Does the President have the authority? Does the President have the power to remove cabinet officials? We know that the President has the power to appoint the cabinet with the advice and consent of the Senate, but what about removing the cabinet? This became as I've always alluded to a major issue after the Civil War. When Abraham Lincoln was assassinated, his vice president Andrew Johnson became president. Johnson had been a senator from Tennessee. He had opposed the South seceding. He was picked by Lincoln in 1864, or more precisely, picked by the Republican Party in 1864, to be Lincoln's running mate in a unity move. But Johnson's sympathies were all with the South and so after the North won the Civil War found that it had a southerner as President. One of the things that Congress did was pass this statute called The Tenure in Office Act. It prohibited Andrew Johnson from removing anyone from Lincoln's cabinet. Lincoln's cabinet then felt emboldened to criticize, even to ridicule Andrew Johnson. The Secretary of War, a man by the name of Stanton, did just this. Johnson fired Stanton for being Secretary of War. Immediately Congress, specifically the House of Representatives, passed impeachment resolutions against Johnson. The Tenure In Office Act said that if Johnson fired anyone from Lincoln's cabinet, that would be quote a high misdemeanor using the language of the Constitution saying that the president be impeached for high crimes and misdemeanors. All but one of the articles of impeachment voted against the Andrew Johnson were violating The Tenure In Office Act. But this is the underlying question. Does the President have the power to fire the cabinet? If so, what Johnson did was completely constitutional. To pick examples from our time, does the President have the authority to seize the steel mills or another business in wartime? Does the President have the authority to invoke executive privilege, to keep secret conversations with or memoranda from advisors? The Constitution is silent about this. Does the president have the power nonetheless? What's interesting two and a quarter centuries into American history is there's no definitive answer to this major question, when may the president act without express constitutional or statutory authority? Obviously if there's a constitutional provision that gives the president the power, the President can exercise it. Article II gives the president the authority to pardon those who've been accused or convicted of federal crimes. The President has the power to pardon. But, what about where the Constitution is silent? If a statute purports to give the President a power, then the question is does Congress have the authority to do that? What I'm focusing on situations where there is statutes where the Constitution is silent. The leading Supreme Court case about this was Youngstown Sheet & Tube v Sawyer. What's interesting is that the various opinions in the case give quite different answers to the question I posed. When may the President act without constitutional or statutory authority? Youngstown Sheet & Tube versus Sawyer arose in the context of the Korean war. There was a wage dispute between the steel mills and their employees. A wage stabilization board recommended a wage increase for steel workers. Steel mills made clear they weren't going to go along with the recommendation and pay the additional money. The steel workers were then going to go out on strike. President Truman was concerned about what would this mean to the war effort in Korea. Obviously, steel is crucial for weapons and for being able to fight the war. And so, President Truman ordered his Secretary of Commerce, Eugene Sawyer, to seize the steel mills and to keep them running. The steel mill owners brought a challenge to this, saying that it was unconstitutional for the president to do this. The Supreme Court, in a 6-3 decision ruled against President Truman and in favor of the steel mill owners. What's interesting, as I've already mentioned is there are a number of opinions in Youngstown, and each answered the question that I've posed, when may the President act without constitutional or statutory authority, differently. Let me talk about those opinions. The majority opinion was written By Justice Hugo Black. And it was a majority opinion. Justice Black said the President has no inherent powers. The President can act only if there's constitutional or statutory authority, period, end of story. Now this has the virtue of being a bright line rule, the only relevant question is, is there a constitutional of statutory provision? If not, the President's action is unconstitutional. This approach though has the disadvantage but being so inflexible. It would mean that the President can't recognize foreign governments or issue neutrality proclamations, that the President can't remove cabinet officers, the President can't claim executive privilege because none of these powers are mentioned in the Constitution. Justice Black's approach, no inherent powers, has therefore not surprisingly not been followed by the Supreme Court. Justice William Douglas wrote a concurring opinion. It took a quite different approach to arguing that President Truman's seizure of the steel mills unconstitutional. Justice Douglas said Congress alone has the power of the purse. The power that I discussed to tax and spend. Justice Douglas said if the president seizes the steel mills then it's a taking of property from private owners. Under the Fifth Amendment if the government takes private property it has to pay just compensation. Justice Douglas said, the President by seizing the steel mills, is forcing Congress to spend money. Justice Douglas says, the President here is usurping Congress' exclusive control over the purse over spending. So Justice Douglas would answer this question that I posed by saying, that the President has inherent power. And may act without constitutional statutory authority, until and unless the President usurps or interferes with the powers of another branch of government. That's permissible for the President to act even though there's no constitutional statutory authority, until and unless what the President's doing is usurping, taking over the powers of another branch of government or interfering with another branch and its ability to carry out its functions. Justice Douglas would have found seizing the steel mills was usurping Congress' power first was therefore unconstitutional. Justice Robert Jackson and Justice Felix Frankfurter each wrote separate concurring opinions, and they took yet a different approach. Justice Jackson and Justice Frankfurter said, this isn't a place where Congress has been silent. Each Justice, Jackson, Frankfurter's opinion said there were many proposals in Congress to give to the President the authority to seize businesses to fight the war. Congress rejected that. They either for said Congress has acted. Congress by not adopting such laws has clearly disapproved such presidential power. So for justices Jackson and Frankfurter the President could exercise inherent power but only until and unless Congress has acted to stop what the President is doing. And here the court found Jackson, Frankfurter Congress had acted by refusing to give the President this authority. Justice Jackson's opinion in Youngstown Tube v Sawyer Is particularly famous. Justice Jackson said that there's three different zones of Presidential power. Justice Jackson says one is when the President is acting pursuant to a statute. That's where the President's power's the strongest, because the President has all of the powers that the Constitution gives to the President and all the powers that Congress can invest in the president. Justice Jackson says the second zone, which he calls the twilight zone, is a situation where the Constitution and statutes are silent. That's what I am focusing on in talking about inherent power. And then just as Jackson says the third zone is where presidential power is at it's lowest step because Congress is prohibiting what the President's doing. Then, the President can act only if the federal statue adopt by Congress is unconstitutional. Justice Jackson's tripartite analysis gets quoted all the time, I think it's because lawyers love three part tests. But it's not terribly helpful in answering the question I'm focusing on, when can the President act without constitutional or statutory authority? What Jackson calls the twilight zone and here I think Jackson's answered the question as the President can act until and unless Congress says no. Chief justice Fred Vinson perhaps coincidentally more likely not in appointee to the court by President Truman dissents. And among other things, what he says is, the president has a zone of authority that's inherent to the office. In fact, it's unconstitutional for Congress to try to limit the president in that zone of authority. And the dissent would have found that the President's authority to see still rules. So as we'll successfully fight a war is inherent to the presidency and Truman should have been able to do this. So notice I posed the question when may the President act without constitutional or statutory authority? Phrased another way. When may the President exercise inherent power? In Youngstown Sheet and Tube versus Sawyer, the opinions give four different answers. Which is chosen, certainly determines what evidence and what arguments are relevant. And whether any particular action is likely to be unconstitutional. One approach says no inherent presidential power. The President can act only if there is express or implied constitutional statute of authority. A second approach says the President has inherent powers, but the President is limited and cannot use them if they usurp or interfere with the powers of another branch of government. A third says, that the President has unlimited powers until and unless Congress passes statute limiting it. The fourth approach says that the President has some inherit powers, and with his own of the inherent powers, Congress cannot, the courts cannot limit what the President the is doing. So under the first approach, the only question will be, is there a constitutional or statutory provision? Under the second approach the question would be, is the President usurping or interfering with another branch of government? Under the third approach the question would be, has Congress acted sufficiently to disapprove the Presidents action? Under the fourth approach the question would be, is this a zone of activity reserved exclusively for the President's control? Interestingly, there are Supreme Court decisions involving each of these four and Supreme Court decisions adopting each of these four different approaches. That's why it's an unsettled question, and it's worth looking at some examples to show why the choice of model here matters so much.
