What are the "Inherent" Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights

By MICHAEL C. DORF
Monday, Feb. 13, 2006

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.

Two Examples of Exclusive Presidential Power

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.

Concurrent War Powers: When the President and Congress Share Power

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.

No Inherent Power to Override Congressional Regulation of Surveillance

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.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in March 2006.