Enumerated and Implied Power

3 Key excerpts on "Enumerated and Implied Power"

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  eBook - ePub

  American Constitutional Law, Volume I

  The Structure of Government

  • Ralph A. Rossum, G. Alan Tarr, Vincent Phillip Munoz, Ralph Rossum(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  Clinton v. City of New York (1998), a six-member Court majority agreed, invalidating the Act because it violated the constitutionally prescribed procedure for the enactment of legislation.

  Implied Powers

  Presidential power has also increased through the recognition of the implied powers of the office. Chief Justice (and former president) William Howard Taft summarized the basis for claims of implied powers: “The true view of the Executive function is … that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as necessary and proper for its exercise.” In taking this position, Taft was rejecting an even more expansive view of presidential power enunciated by President Theodore Roosevelt.2 Yet Taft’s view likewise supports a broad exercise of executive power in suggesting that the president is not restricted to the powers enumerated in Article II. Because those grants relate to particular governmental functions and because the Framers intended that the executive fulfill those functions, it follows that they must have provided the executive with the means necessary to carry them out. Thus, the character of the powers assigned to the president points to the existence of implied powers.

  Yet acceptance of the principle of implied powers does not prevent disagreements about the scope of those powers. Examination of the president’s powers as chief executive and the disputes over executive privilege and presidential immunity illustrate both the bases for claims of implied powers and possible limits on those powers.

  The President as Chief Executive

  Article II of the Constitution recognizes the president as head of the executive branch, assigning him “the Executive Power” and making him responsible for ensuring “that the laws be faithfully executed.” To enable him to meet his responsibilities, it grants him the power to appoint major executive officers. This promotes presidential control over those who execute the laws—a necessary precondition for the effective supervision of administration. It also leads to accountability in the executive. A president who selects executive officials and has authority over them can be held responsible for their actions. But the Constitution limits presidential control over the selection of executive-branch officials in several ways. First, presidential nominees for most major offices must be confirmed by the Senate. Although usually they are—since 1789, only eight nominees for cabinet posts have been rejected—on occasion presidents have been forced to withdraw nominations, and the necessity of securing senatorial confirmation also constrains presidential choices. Congress also by statute defines the offices to be filled as well as the responsibilities of those offices, and it can require Senate approval for appointment to them. Under legislation enacted in 1974, for example, the director of the Office of Management and the Budget must be confirmed by the Senate. Furthermore, Congress can establish qualifications for offices that restrict the president’s range of choice in filling them.

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  eBook - ePub

  New Directions in the American Presidency

  • Lori Cox Han(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  prerogative power to act in the public good without direction from, and possibly against, existing laws. Once one accepts any of these sources of power as legitimate, the scope of constitutionally permissible presidential action becomes broader.

  The concept of “authority” used herein is defined as “the power to affect change and the perceived right to do so.”3 Such a definition incorporates both the formal and informal conceptions of power referenced above as well as a set of shared understandings of expected behavior, or norms, about who or which institution should act in any given context.4 As with the above, once a shared set of expectations regarding how the presidency should function in the American political system is established, a president would have greater range of what would be seen as constitutionally permissible behavior. Given these conceptions of presidential power and authority, we can now begin to examine the relationship of the presidency and the Constitution.

  Article II and the Framers

  Article II of the Constitution contains the primary provisions related to the presidency. It starts with the vesting clause set out above, which should be contrasted against the vesting clause for Congress contained in Article I. Where Article II spoke of the executive power, Article I referenced “All legislative Powers.” The use of “powers” in Article I combined with the specific and lengthy list of specific legislative powers enumerated for Congress in Article I, Section 8 connote that Congress’ authority was limited to the specific grants identified within the Constitution. Such a connotation is consistent with the framers’ view that Congress, not the presidency, would be the vortex of power within the American political system drawing power from the other institutions, and thus its powers needed to be contained.

  By comparison, the less precise term of “executive power” coupled with the more general description of types of executive powers elsewhere in Article II implies that the presidency would have authority inherent in the nature of the institution. The structural limits of the presidency’s authority derived from the vesting clause has received mixed treatment in the judicial branch, as well as remaining an active matter of academic debate.5 Compare, for example, Chief Justice (and former president) William Howard Taft’s majority opinion in Myers v. United States , referencing the “unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone”6 with Justice Robert H. Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer , contending that a broad interpretation of the vesting clause results in the equivalent of totalitarianism.7

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  eBook - ePub

  The law of international organisations

  Third edition

  • Nigel D. White(Author)
  • 2016(Publication Date)
  • Manchester University Press

    (Publisher)

  It appeared to be derived more from the general nature and purposes of the UN as a body aimed at securing international peace and security, an aim requiring the extensive use of personnel in dangerous situations. Judge Hackworth, in his dissenting opinion, pointed to what he viewed as an unacceptable extension of the doctrine of implied powers by the Court on the grounds that the doctrine should be based clearly on the intent of the founding members and, thus, is more restricted than the Court recognised: [i]‌t is to be presumed that such powers as the Member States desired to confer upon it are stated either in the Charter or in complementary agreements concluded by them. Powers not expressed cannot freely be implied. Implied powers flow from a grant of expressed powers, and are limited to those that are ‘necessary’ to the exercise of powers expressly granted. No necessity for the exercise of power here in question has been shown to exist. 53 The weaker the tie between implied powers and powers expressly granted, the weaker is the justification based on intent. Although the implication of powers from the express purposes (as opposed to the express powers) of the UN may have the appearance of being based on intent since the founders intended the UN to have those purposes, it is in reality further removed from such intent. When formulating the purposes of the UN the founding states only intended those purposes to be fulfilled by the powers clearly attributed in the body of the treaty – that is express powers or those that must inevitably flow from them. Recognising wider powers, which further the purposes of the UN, effectively divorces the powers of the UN from the intent of the member states

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