Presidential powers and the Supreme Court

Description:The legal authorities granted to a president and the executive branch by the United States Constitution.

Significance:The Supreme Court often reviews the extent of presidential authority because of the ambiguity of Article II of the U.S. Constitution, which defines the legal authorities granted to a president and the executive branch.

Regarding the history of the United States Supreme Court, many consider its first cases to be among its most important. This stemmed from decisions that defined the scope of presidential authority. One such case, Marbury v. Madison (1803), is considered a seminal event because it was here that the Court established the precedent of judicial review. The Court also addressed the formal relationship between the judicial and executive branches. The Court was also forced to determine whether the United States Secretary of State and, by implication, the American president could be subjected to a court order or injunction. Chief Justice John Marshall’s opinion formalized the legal and political boundaries of executive authority. Where the law required an executive action, a court order could be issued and enforced; where the president’s duty is “political” and discretionary, courts could not intervene. The Court’s decision, which has been subsequently reaffirmed, established a fundamental principle— the president and the executive branch of the government is subject to legal restraints. Such a rule is particularly important in governmental systems based on the separation of powers, in which conflict between the branches of the government is common.

Article II of the U.S. Constitution is not specific on the extent of the president’s powers. The authorities to conduct war and foreign affairs are shared with between the executive and legislative branches. As it pertains to domestic issues, Article II states 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 define what the executive powers are. Consequently, exercises of presidential power have often brought about Court action.

On several occasions, it has fallen to the Supreme Court to define the president’s authority to remove federal officials from office. In 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 unable, presidents could not reasonably 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 (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

An important case regarding the president’s domestic powers is Youngstown Sheet and Tube Co. v. Sawyer (1952). During the Korean War, the steelworkers unions threatened to strike. To avert the possibility that the availability of steel would be insufficient to meet military requirements, 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 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 authority. The opinion of the Court was delivered by Justice Hugo L. Black, who reasoned that the seizure amounted to lawmaking, as the Constitution assigns the power “to raise and support armies” to Congress. Any exercise of presidential power must spring from either the Constitution or by law. Because no legislation had authorized the seizure, Black turned to the Constitution to determine if such authorities existed. Truman’s legal presumption that the aggregate of presidential power supported the seizure was deemed too broad and open-ended. It would eliminate powers that could be claimed under the guise of a national emergency. As a result, 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 actions 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

The presidential administration of Richard M. Nixon Nixon issued many assertions of executive privilege during his five and a half years in office. All but one of these were eventually decided by the Court, and each was rejected. 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 Paperswhich documented 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 grounds 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 (1972).

A claim by the Nixon administration that the president has the power to “impound” funds to decline to spend money appropriated by Congress was unanimously rejected by the Court in 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 Clinton. The Court rejected it in 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 (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 revealed evidence that he had been part of a conspiracy to obstruct justice. He resigned immediately thereafter.

In addition to Nixon, a United States President notable for attempting to claim the right to executive privilege was its former forty-fifth president, Donald Trump. These actions were invoked during his two impeachment trials while president, and also investigations that were initiated after he had departed the office. In many instances, U.S. courts have not allowed the former president to bar testimony from former members of his government.

Foreign and Defense Policy

In 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. (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 (1981), in which the Court held that President Jimmy Carter’s 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 (1982) that the president is absolutely immune from civil liability for his official acts. However, in 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.

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 (1982) that the president is absolutely immune from civil liability for his official acts. However, in 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.

Bibliography

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 relationship 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 relationship 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.

McElvein, Elizabeth, and Benajim Wittes. "Trump Loses Big on Executive Privilege." Lawfare, 20 Jan. 2022, www.lawfareblog.com/trump-loses-big-executive-privilege. Accessed 1 Apr. 2023.

Savage, Charlie. "Trump’s Claim of Executive Privilege in the Jan. 6 Inquiry, Explained." The New York Times, 20 Jan. 2022, www.nytimes.com/2021/10/19/us/politics/trump-executive-privilege. Accessed 6 Apr. 2023. Accessed 17 Apr. 2023.

Sullivan, Becky. "The Pence Subpoena Could Set Up a Showdown Over Executive Privilege." NPR, 11 Feb. 2023, www.npr.org/2023/02/11/1156205144/mike-pence-subpoena-executive-privilege. Accessed 17 Apr. 2023.