The Power of the President
The Power of the President
The boundaries of presidential authority initially were tested in Marbury v. Madison (1803), when the Court determined that not even the chief executive was beyond its power “to say what the law is.” The Marbury decision, like the Court’s ruling in United States v. Nixon (1974), drew a line between presidential and judicial power.
Turf issues also have arisen between the President and Congress. In Youngstown Sheet and Tube Co. v. Sawyer (1952), the Court ruled against President Truman’s seizure of the steel industry. The President had justified his action on grounds that it was essential for successful execution of the Korean War. The Court determined that, absent any specific constitutional provision or congressional authorization, the President had exceeded his authority. In Dames and Moore v. Regan (1981), the Court revisited the boundaries between the President and Congress. This case concerned the resolution of a conflict between the United States and Iran and provided more flexibility for the chief executive to act in foreign affairs. The President’s power to appoint officers of the United States was examined in Morrison v. Olson (1988), when the Court upheld congressional authority to appoint independent counsel to investigate and prosecute government misconduct. The post-9/11 war on terror brought new questions about executive power.
Executive authority to detain “enemy combatants” was the issue in Hamdi v. Rumsfeld (2004). In this case, the Court determined that an American citizen in an allegedly “enemy” relationship with the United States could not be detained through the duration of a war without due process. An uneasy relationship developed between the Court and Congress, particularly over the rights of enemy combatants held at Guantanamo Bay. In 2005 Congress passed the Detainee Treatment Act, which provided that federal courts could not hear writs of habeas corpus by “enemy combatants.” However, in Hamdan v. Rumsfeld (2006), the Court held that the Detainee Treatment Act did not apply retroactively to those held in custody prior to the Act’s enactment.
In response to Hamdan, Congress passed the Military Commission Act, which provided that noncitizens held as enemy combatants could not have access to federal courts, except in the limited circumstance where a military proceeding had occurred, in which case the detainee could seek review of its decision in the U.S. Court of Appeals for the District of Columbia. The back and forth continued with the Court’s ruling in Boumediene v. Bush (2008). In Boumediene, the Court, in a 5-4 decision, ruled that the writ of habeas corpus could only be suspended in times of rebellion or invasion, and that neither of those conditions existed at the time to justify Congress’s action.
Dames and Moore v. Regan
Citation: 453 U.S. 654.
Issue: The scope of presidential power to make law in the context of an infringement of individual property rights.
Year of Decision: 1981.
Outcome: The scope of presidential powers depends on an assessment of a variety of factors including the President’s explicit powers and those powers delegated to the President by Congress.
Author of Opinion: Justice William Rehnquist.
Relying on eighteenth-century European political philosophy, the framers of the United States Constitution created a system of divided powers. Influenced by the adage that power corrupts, and absolute power corrupts absolutely, the framers chose to divide power between three separate and independent branches of government (the legislative, the executive, and the judicial). The framers hoped that the three branches would compete with each other for power and would thereby limit the power of the other branches. As the Court put it in Mistretta v. United States (1989), the Constitution created “a carefully crafted system of checked and balanced power within each Branch [to avoid tyranny in a Branch].”
The concepts of separated powers, and of “checked and balanced” power, are reflected in various provisions of the Constitution. Even though Congress has the power to pass legislation, a bill does not become law unless it is signed by the President (or unless a presidential veto is overridden by a supermajority). In the area of foreign affairs, whereas the President is given broad authority over foreign affairs and is denominated as the commander in chief of the armed forces, Congress is given the power to regulate foreign commerce, to spend money to raise armies, to declare wars, and to consent to treaties.
The clash between the President’s power and Congress’s power over foreign affairs has played out in several dramatic cases. One of the most famous cases, Youngstown Sheet and Tube Co. v. Sawyer (1952), arose during the Korean War. Facing a strike at United States steel mills, President Truman seized them in order to preserve the continuity of steel production during the war. The President claimed that a national emergency existed because “steel is an indispensable component of substantially all of such weapons and materials.” Truman declared that “to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the [steel] plants.”
In an opinion by Justice Hugo Black, the Court concluded that President Truman had acted illegally. Viewing the President’s power formalistically, the Court concluded that the President was required to point to “express constitutional language” supporting his right to seize the mills. In other words, the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. Since no constitutional provision explicitly authorized the seizure, the authority could not be implied. The Court rejected the argument that the President’s explicit powers included his obligation to “take Care that the Laws be faithfully executed” and his power as “Commander in Chief of the Army and Navy of the United States.” The Court ultimately concluded that the “Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. [T]his seizure order cannot stand.”
The Court departed from Youngstown’s formalistic approach in Dames and Moore v. Regan. In this case, which arose after Iranian students had held Americans hostage for more than a year, President Carter entered into an executive agreement with Iran that obtained the hostages’ release. The agreement provided that attachments and liens on Iranian assets in the United States would be nullified, and those assets would be transferred to Iran. The agreement also provided for a suspension of claims against Iran and presentation of those claims to an International Claims Tribunal. After the Executive Agreement was finalized, the Treasury Department promulgated a regulation providing that “[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which on or since [November 14, 1979,] there existed an interest of Iran.”
The case arose when Dames and Moore challenged the Executive Agreement and the regulation. Dames and Moore claimed that it was a beneficiary under a contract to conduct site studies for a proposed nuclear power plant in Iran and sought damages for services provided as well as interest. Although the trial court entered orders of attachment, the regulation required disallowance of the claim.
Had the Court applied Youngstown’s more formalistic view of presidential power, it should have struck down the Executive Agreement and the regulation because the President’s actions were not explicitly authorized. Instead, eschewing Youngstown’s formalistic approach to presidential power, the Court relied on Justice Robert Jackson’s concurring opinion in Youngstown. In that concurrence, Justice Jackson articulated a flexible approach to presidential power that focused on the relationship between the President and Congress. When the President acts pursuant to express or implied congressional authorization, “the President’s power is at its zenith because he exercises both his own power and Congress’ power.” In such a situation, the President’s action “would be supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” By contrast, when the President acts without congressional authorization, he enters “a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” In this second situation, the analysis is more complex, and “the validity of the President’s action, at least so far as separation-of-powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including ‘congressional inertia, indifference or acquiescence.’” Finally, when the President acts contrary to Congress’s will, “his power is at its lowest ebb,” and the Court “can sustain his actions ‘only by disabling the Congress from acting upon the subject.’”
In Dames and Moore, President Carter asserted that his authority to nullify attachments fit within Justice Jackson’s first category because he was acting with congressional authorization. President Carter relied on a federal statute that allowed him to “investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States.”
In accepting President Carter’s argument, the Court concluded that, because “the President’s action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization,” it was “supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” As a result, the Court concluded that, “[u]nder the circumstances of this case, we cannot say that petitioner has sustained that heavy burden.”
The Court also upheld the President’s authority to suspend pending claims in United States courts. Although Congress did not explicitly authorize the suspension, Congress arguably approved it when it enacted the International Claims Settlement Act of 1949. Congress had amended the International Claims Settlement Act to provide for its application to settlement agreements, and the Court viewed this fact as demonstrating Congress’s acceptance of the President’s claim authority. The Court concluded that “[i]n light of . . . the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement—we conclude that the President was authorized to suspend pending claims pursuant to Executive Order No. 12294. Dames and Moore is one of those landmark decisions that reshape the Court’s approach to a constitutional problem. The decision rejected Youngstown’s more formalistic approach to presidential power and substituted a flexible approach that examines both congressional and presidential action. The net result was an expansion of presidential power. No longer must the President point to a specific constitutional provision that explicitly authorizes his actions. Moreover, especially when Congress has explicitly or implicitly signaled its assent to the presidential actions, the President can rely on both his constitutional prerogatives and Congress’s as well.
Mr. Justice REHNQUIST delivered the opinion of the Court.
. . . When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress. In such a case the executive action “would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” When the President acts in the absence of congressional authorization he may enter “a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” In such a case the analysis becomes more complicated, and the validity of the President’s action, at least so far as separation-of-powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including “congressional inertia, indifference or quiescence.” Finally, when the President acts in contravention of the will of Congress, “his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”
Because the President’s action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization, it is “supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. Under the circumstances of this case, we cannot say that petitioner has sustained that heavy burden. A contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, and that we are not prepared to say.
Although we have concluded that the IEEPA constitutes specific congressional authorization to the President to nullify the attachments and order the transfer of Iranian assets, there remains the question of the President’s authority to suspend claims pending in American courts. We conclude that although the IEEPA authorized the nullification of the attachments, it cannot be read to authorize the suspension of the claims. The claims of American citizens against Iran are not in themselves transactions involving Iranian property or efforts to exercise any rights with respect to such property. An in personam lawsuit, although it might eventually be reduced to judgment and that judgment might be executed upon, is an effort to establish liability and fix damages and does not focus on any particular property within the jurisdiction. The terms of the IEEPA therefore do not authorize the President to suspend claims in American courts. This is the view of all the courts which have considered the question.
Although we have declined to conclude that the IEEPA or the Hostage Act directly authorizes the President’s suspension of claims for the reasons noted, we cannot ignore the general tenor of Congress’ legislation in this area in trying to determine whether the President is acting alone or at least with the acceptance of Congress. . . . At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President. . . .
In addition to congressional acquiescence in the President’s power to settle claims, prior cases of this Court have also recognized that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. . . .
In light of all of the foregoing—the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement—we conclude that the President was authorized to suspend pending claims pursuant to Executive Order No. 12294. . . .
Finally, we re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed, “[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary.” But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President’s action, we are not prepared to say that the President lacks the power to settle such claims.
Justice STEVENS, concurring in part.
In my judgment the possibility that requiring this petitioner to prosecute its claim in another forum will constitute an unconstitutional “taking” is so remote that I would not address the jurisdictional question considered in Part V of the Court’s opinion. However, I join the remainder of the opinion.
Justice POWELL, concurring and dissenting in part.
I join the Court’s opinion except its decision that the nullification of the attachments did not effect a taking of property interests giving rise to claims for just compensation. The nullification of attachments presents a separate question from whether the suspension and proposed settlement of claims against Iran may constitute a taking. I would leave both “taking” claims open for resolution on a case-by-case basis in actions before the Court of Claims. The facts of the hundreds of claims pending against Iran are not known to this Court and may differ from the facts in this case. I therefore dissent from the Court’s decision with respect to attachments. The decision may well be erroneous, and it certainly is premature with respect to many claims.
I agree with the Court’s opinion with respect to the suspension and settlement of claims against Iran and its instrumentalities. The opinion makes clear that some claims may not be adjudicated by the Claims Tribunal and that others may not be paid in full. The Court holds that parties whose valid claims are not adjudicated or not fully paid may bring a “taking” claim against the United States in the Court of Claims, the jurisdiction of which this Court acknowledges. The Government must pay just compensation when it furthers the Nation’s foreign policy goals by using as “bargaining chips” claims lawfully held by a relatively few persons and subject to the jurisdiction of our courts. The extraordinary powers of the President and Congress upon which our decision rests cannot, in the circumstances of this case, displace the Just Compensation Clause of the Constitution.
Bradley, Curtis A., and Trevor W. Morrison. “Presidential Power, Historical Practice, and Legal Constraint.” Columbia Law Review 113 (2013): 1097.
Morrison, Alan B. “The Sounds of Silence: the Irrelevance of Congressional Inaction in Separation of Powers Litigation.” George Washington Law Review 81 (2013): 1211.
Tribe, Laurence H. “Taking Text and Structure Seriously.” Harvard Law Review 108 (1995): 1221.
Yoo, John C. “Laws as Treaties: The Constitutionality of Congressional-Executive Agreements.” Michigan Law Review 99 (2001): 757.
Morrison v. Olson
Citation: 487 U.S. 654.
Issue: Whether an independent counsel, whose role is to investigate government misconduct, is an “officer” of the United States and thus appointable only by the President.
Year of Decision: 1988.
Outcome: An independent counsel is an “inferior officer” and thus may be appointed by department heads or the judiciary.
Author of Opinion: Justice William Rehnquist.
In drafting the United States Constitution, the framers divided power between three separate and independent branches of government, but also provided for overlapping and intertwined relation- ships between the three branches. Examples of this intertwinement are evident throughout the Constitution. The decision to enter into a treaty requires combined presidential and Senate action. Likewise, even though Congress is vested with the power to pass legislation, the President must approve it before the legislation becomes law (unless two-thirds of the Congress override the President’s veto). As the Court observed in Youngstown Sheet and Tube Co. v. Sawyer (1952), “[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches a separateness but interdependence, autonomy but reciprocity.”
Under the appointments clause of the United States Constitution, the Constitution generally vests the appointment power in the President subject to the advice and consent of the Senate. The clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . .all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” (U.S. Const., Art. II, s 2, cl. 2).
In general, the appointments clause has been construed to place the appointment power with the President. For example, in Buckley v. Valeo (1976), the Court struck down portions of the Federal Election Campaign Act of 1971, in which Congress established the Federal Election Commission (FEC) and vested it with the power to administer federal election laws. Congress provided that commissioners were to be appointed by the President (subject to confirmation by both houses of Congress), the President pro tempore of the Senate, and the Speaker of the United States House of Representatives. The Court concluded that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed by the President.” The Court concluded that all of the FEC commissioners were “officers” because they exercised discretionary enforcement power.
The Court has construed the President’s removal power similarly. In Myers v. United States (1925), the Court held that the President had the right, without Senate approval, to remove a postmaster. However, a decade later, in Humphrey’s Executor v. United States (1935), the Court qualified Myers in holding that the President did not have discretionary authority to remove a Federal Trade commissioner. The Court held that a statutory provision, providing that the President could remove commissioners only “for inefficiency, neglect of duty, or malfeasance in office,” was constitutional. The Court distinguished Myers, reaffirming its holding that “congressional participation in the removal of executive officers is unconstitutional.”
Morrison arose in the wake of the Watergate break-in and cover-up that ultimately led to President Nixon’s resignation. The Ethics in Government Act of 1978 provided for the appointment of an “independent counsel” with the authority to investigate, report, and prosecute governmental misconduct against the law. While a panel of three federal judges appointed independent counsels, the executive branch retained the removal power. This power was vested in the attorney general, who was required to show “good cause” for removal and report those reasons to the appointing judges.
In upholding the Ethics in Government Act’s appointment provisions, Morrison held that the critical question is whether the independent counsel is an “officer” of the United States (in which case the President must retain the power to appoint) or is an “inferior officer.” Under the appointments clause, Congress may vest the appointment of these “inferior officers” in the President alone, the heads of departments, or the Judiciary. The Court concluded that an independent counsel is an “inferior officer” of the United States. The Court did not attempt to draw a bright line between “officers” and “inferior officers,” but it did offer four factors to use as helpful guides in making the distinction.
Morrison did not hold that Congress has unlimited power to vest the appointment power over “inferior federal officers” outside the Executive Branch. The Court suggested that it might invalidate such appointments if “there was some ‘incongruity’ between the functions normally performed by the courts and the performance of their duty to appoint.” However, the Court held that independent counsel appointments did not raise these concerns.
Justice Antonin Scalia dissented, arguing that the independent counsel’s function is essentially executive in nature “in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.” As a result, he would have invalidated the statute because it reduced “the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.”
Morrison is an important decision because it helps define the scope of the President’s appointment power. While the President is vested with the power to appoint “officers” of the United States, Morrison makes it clear that Congress can vest the appointment of “inferior officers” in the courts.
Mr. Chief Justice REHNQUIST delivered the opinion of the Court.
. . . The Appointments Clause of Article II reads as follows:
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” The line between “inferior” and “principal” officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. . . . We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the “inferior officer” side of that line. Several factors lead to this conclusion.
First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be “subordinate” to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree “inferior” in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel’s role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. . . .
Third, appellant’s office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant’s office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. . . .
This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an “inferior” officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of “interbranch appointments,” in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: “. . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.” On its face, the language of this “excepting clause” admits of no limitation on interbranch appointments. Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of Law.” . . .
We do not mean to say that Congress’ power to provide for interbranch appointments of “inferior officers” is unlimited. . . . In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals’ conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers. . . . Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of the Act’s provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on “incongruous” interbranch appointments.
Justice SCALIA, dissenting.
It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47 (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.
The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United *698 States, which shall consist of a Senate and House of Representatives.” Article III, § 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And the provision at issue here, Art. II, § 1, cl. 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.”
But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized “[t]he insufficiency of a mere parchment delineation of the boundaries” to achieve the separation of powers. Federalist No. 73 (A. Hamilton). “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51. . . .
The major “fortification” provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive’s strength in the same way they had weakened the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. Thus, while “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” U.S. Const., Art. I, § 1 (emphasis added), “[t]he executive Power shall be vested in a President of the United States,” Art. II, § 1, cl. 1 (emphasis added).
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
The present case began when the Legislative and Executive Branches became “embroiled in a dispute concerning the scope of the congressional investigatory power,”—as is often the case with such interbranch conflicts—became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House’s response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try “[c]ompromise and cooperation, rather than confrontation.” After further haggling, the two branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents. . . .
As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that “there are no reasonable grounds to believe that further investigation or prosecution is warranted.” As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000–page indictment drawn by our representatives over 2 ½ years does not even establish “reasonable grounds to believe” that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court’s opinion asserts that the Attorney General had “no duty to comply with the [congressional] request,” that is not entirely accurate. He had a duty to comply unless he could conclude that there were “no reasonable grounds to believe,” not that prosecution was warranted, but merely that “further investigation” was warranted, after a 90–day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity, or even subpoenas. The Court also makes much of the fact that “the courts are specifically prevented from reviewing the Attorney General’s decision not to seek appointment. Yes, but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why.
Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. . . .
Croner, Andrew. “Morrison, Edmond, and the Power of Appointments,” George Washington Law Review 77 (2009): 1002.
Fisher, Louis. Constitutional Conflicts between the Congress and the President. Lawrence, KS: University Press of Kansas, 1997.
Lessig, Lawrence, and Cass R. Sunstein. “The President and the Administration.” Columbia Law Review 94 (1994): 1.
Hamdi v. Rumsfeld
Citation: 124 S.Ct. 2633.
Issue: Whether the military may detain a United States citizen on enemy soil as an enemy combatant without a hearing.
Year of Decision: 2004.
Outcome: A citizen cannot be held indefinitely without being given the opportunity to challenge the government’s conclusion that he/she is an “enemy combatant.”
Author of Opinion: Justice Sandra Day O’Connor.