Regulating Presidential Powers

Abstract

Questions about the scope of the President's constitutional powers are in the news today like perhaps no time in recent memory. Splashed across the dailies and leading off the evening news are stories about executive power. Has the Senate invaded the President's power to appoint judges by permitting quasi-filibusters of nominees? Does the President have the right, as Commander-in-Chief, to order the torture of enemy prisoners? May the President instruct state courts to adhere to his reading of a treaty concerning the treatment of arrested foreign nationals?

Dean Harold Krent's lively and eminently readable book, Presidential Powers, is nothing if not timely. In 200-plus pages of text, Krent canvasses the President's constitutional powers, focusing on law execution authority, foreign affairs powers, emergency powers, privileges and immunities, and the pardon power. The result is a Corwinesque book that weaves together arguments about text, structure, history, and doctrine to make claims about the current and proper scope of presidential powers.' For those seeking a survey of the President's constitutional powers, the book amply fits the bill. It thoughtfully considers some classic questions, such as whether the President has a removal power and how the Constitution allocates foreign affairs authority between the President and Congress.

After first describing the book's contents, this Review considers a question that permeates Presidential Powers but never receives any systematic treatment: To what extent, and in what way, are presidential powers really the President's? There will always be earnest disputes about whether the Constitution grants the President particular powers. But even as to acknowledged executive authorities, what, if anything, may Congress do to curb controversial exercises of presidential power? For example, some might think it advantageous if Congress could bar or at least erect a check on pardons of donors, administration personnel, and personal friends. Likewise, others might deem it desirable to deny the President the power to nominate judges with life tenure.

Notwithstanding the possible benefits of congressional regulation of executive powers, the Constitution's text, structure, and early history reveal that Congress lacks a generic right to reallocate or tamper with presidential powers. To begin with, the vast majority of presidential powers read as if they are absolute grants not subject to congressional control or modification. Perhaps more importantly, the Constitution never grants Congress the generic authority to treat presidential powers as if they were default power, i.e., powers freely exercisable only so long as Congress does not regulate them. Tellingly, the Constitution conspicuously lacks language found in the revolutionary state constitutions that expressly made some or all executive powers subject to legislative regulation. Finally, there are few early assertions that Congress could regulate presidential powers.Considered together, these factors help establish that Congress lacks a sweeping authority to regulate presidential powers.

Nonetheless, Congress can tinker with certain presidential powers, in limited ways, typically because the Constitution expressly grants Congress narrow regulatory authority.The presence of these limited exceptions, when considered in conjunction with the arguments mentioned in the previous paragraph, helps prove the rule that Congress lacks a generic authority to regulate powers vested with other entities. Though Congress can regulate commerce and the value of coins, it generally cannot regulate the President's constitutional powers.

Keywords: Presidential Powers, Separation of Powers, Executive Powers