Executive Power

Case briefs for final exam

3 Part Characterization of Executive Power

1. When the president acts pursuant to an express or implied authorization of Congress, the President’s authority it at its maximum

2. When the President acts absent of a congressional grant or denial of authority, there is a “twilight zone” where Congressional inertia, indifference or quiescence may invite the exercise of executive power

3. When President acts in a manner incompatible with the express or implied will of Congress, the President can rely upon his own constitutional powers minus any constitutional powers of Congress over the matter

Commander-in-Chief/Military Power

Article II

• The president shall be Commander in Chief of the Army and Navy and shall take care that the laws be faithfully executed

• President has an obligation to prosecute war effectively

• These powers pertain to authority in the “theater of war”

Youngstown Sheet & Tube Co. v. Sawyer (1952) Facts:

• To void a nationwide steel strike during the Korean War, Truman issued an executive order granting the Secretary of Commerce the authority to seize and operate steel factories

Youngstown Sheet & Tube Co. v. Sawyer (1952) Holding:

• The President’s order is unconstitutional because it amounted to law-making, a function that the Constitution has confided to Congress

• Seizing steel mills which are private property for public use is unconstitutional under the 5th Amendment Due Process Clause

Youngstown Sheet & Tube Co. v. Sawyer (1952) Rule:

The President cannot act without an act of Congress unless he derives his authority to act from a provision of the Constitution

In re Neagle (1890) Facts:

• During an assault against a California judge, his bodyguard short and killed the assailant

• The bodyguard was arrested and charged with murder under state law

In re Neagle (1890) Holding:

• Article II, §3 of the Constitution provides that the President has executive power to carry out the law of the land

• there is no limitation stipulating that the law be limited to treaties or acts of Congress, therefore the president can issue an order to protect members of government

In re Neagle (1890) Rule:

The President has the express power under the Constitution to execute laws and this includes the implied power that extends beyond acts of Congress to include the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution