Presidential Powers and the Constitution

http://www.law.duke.edu/shell/cite.pl?51+Duke+L.+J.+963

DAVID KESSLER, A QUESTION OF INTENT: A GREAT AMERICAN BATTLE WITH A DEADLY INDUSTRY 68 (2001) (quoting President George H. W. Bush at a White House meeting in January 1993 on regulations to implement the Nutrition Labeling and Education Act).

“I’m a little puzzled. I’m being told that I can’t just make a decision and have it promptly executed, that the Department can’t just salute smartly and go execute whatever decision I make. Why is that?”
— President George H. W. Bush

President Truman’s attempt during the Korean War to seize American steel mills to prevent a strike from crippling the economy was declared illegal by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer because it had not been authorized by Congress. This decision remains one of the Court’s few pronouncements on the subject of constitutional limits on presidential power. Yet this topic will remain the subject of seemingly endless debate because of its continuing importance to understanding the structure of our government. Although this debate often acquires a distinctly partisan tinge, particularly when the White House and Congress are controlled by different political parties, it is vitally important, for the debate raises issues that go to the very heart of our constitutional scheme.

President Abraham Lincoln was the first to issue what was formally called an “executive order,” the Congressional Research Service estimates that during the first seventy-two years of the republic — a period that spans the presidencies of George Washington to James Buchanan — presidents issued a total of 143 directives that now would be considered executive orders.

The argument in favor of presidential authority to dictate agency decisions confronts not only legal difficulties, but also substantial policy concerns. Although it may have become somewhat old-fashioned to speak of agency expertise, any effort to involve the White House in more than a handful of regulatory decisions necessarily must delegate presidential authority to persons who often are likely to have far less expertise than the agency officials whose decisions they seek to displace. The president simply does not have the time to be personally involved in any more than a few of the myriad, [*pg 1007] complex regulatory issues with which agencies grapple on a daily basis. Thus, one consequence of efforts by the Clinton administration and now the George W. Bush administration to assert greater White House authority over agency policies is that young White House aides are now trying to give orders to cabinet officials.249

In his book Locked in the Cabinet, President Clinton’s first secretary of labor, Robert Reich, describes how he repeatedly felt bullied by phone calls from young aides in the White House Office of Cabinet Affairs. After being informed that “[t]he White House wants you to go to Cleveland,” Reich describes his reaction:

Here I am, a member of the president’s cabinet, confirmed by the Senate, the head of an entire government department with eighteen thousand employees, responsible for implementing a huge number of laws and rules, charged with helping people get better jobs, and who is telling me what to do? Some twerp in the White House who has no clue what I’m doing in this job. Screw him. I won’t go.

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