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Main q's - No Implied Presidential Authority [Black, Youngstown

Inherent Executive Authority Does the President have inherent authority to Maj] -
Presidental Power - In written govt of limited powers & specifically
act alone?
Did Congress give the President Power to act? delegated authority the idea of "implied" or "inherent"
Art. II s. 1 vesting clause "the
Was Congress allowed to give this poewr? presidential authority is inconsistent.
executive power shall be vested...." - Congress MUST give the Executive Branch power to
Can Congress retain some of the poewr it kept?
First, note the four models & their current act; the power to enforce the laws is just that - to
acceptance. enforce laws that are passed.
- Law must be passed, not merely debated.
- Dominant Test is currently Jackson's concurrence in Youngstown; adopted by
Rehnquist in Dames & Moore. Broad Inherent Authority -
Second, identify a general area where power - Model 1: Black's Youngstown majority, which suggested the president had Sutherland in Curtiss-Wright
might fit on its own. NO implied powers, no implied authority outside constitutional or statutory - President has exclusive authority -Urgency of Action
authority. in dealing with foreign affairs -President better
-Model 2: President has inherent authority UNLESS he inferes with or usurps because such power is inherent informed than
-Commander in chief? Recognition the authority of another branch of govt. from the union of states. Congress
Power? -Model 3: President MAY exercise powers outside of the Constitution UNLESS - The states did not individually -Counter - Hamdi
Congress disapproves [Jackson concurrence] have foreign policy ability as speed not good
- Model 4: There are zones of inherent power where Congress CANNOT limit subjects, therefore this is a NEW enough reason to
presidential discretion. power created BY the formation of justify unconstitutional
Third, apply tests, beginning with Jackson.
Sutherland's United States v. Curtiss-Wright; president is "sole organ of govt with the exclusive foreign powers [Douglas in
Note that it was formally adopted in Dames &
national relations" - executive branch has complete authority in foreign policy. policy power in the president by SHeet - political
default. process designed to
- Prez needs speedy means of be slow & inefficient]
dealing with important national
So long as the power issues.
Power at Apex - Express or
doesn't violate another
Implied Grant of
constitutional provision, it
Congressional Authority
will be accepted.
Separation of Powers or
Depends on imperatives of
Twilight Zone - no grant or What does Const. give
events & contemporary
denial - Congress Power for?
imperatives -- highly
Inherent powers + twilight Commerce? 14th? Tax
dependent on situation Are these implicatied Twilight Zone - looks to
of concurrent interests. & Spend?
context. by a concurrent contingencies of the
Bc test is relationship
Congress's law must be executive interest? situation; very little
of powers b/w
Lowest Ebb - President unconstitutional for -Foreign Policy caselaw.
Congress & prez ned
Acting contrary to express president to violate federal -War
to assert where
or implied Denial by law OR power is purely, congress's powers Exclusive Presidential Powers Analysis -
Congress expressly given to Pres by are. Zitlovesky - executive alone okay
Const. 1) what does law do? 2) which president power
does this interfere with? 3) has Congress
Old Legislation - Expressly address subject? historically interfered? 4) what power did Congress
Implicit approval? have to pass law?
Dames & Moore - 1949 law on WWII sufficient to
uphold law on 1980s Ira. "By creating a procedure,
Foreign Policy? congress placed its stamp of approval on such future
-Counter - another place, another time, another
Congress. Circumstances still relevant.
Lack of Recent Express Rejection/Approval?