'External Restraints' on Article II?

Abstract

It's understood that, under Article III, Congress has plenary power over the lower federal courts. But that doesn't mean Congress's authority is unlimited. "External restraints”--found in constitutional provisions outside Article III--check Congress's otherwise unlimited power. For example, Congress can't strip jurisdiction of the federal courts in a manner that violates the Due Process Clause. 

So, even though it's correct to say that Congress's power over the lower federal courts is plenary under Article III, the conversation can't end there. Article III itself gives Congress unlimited power, but that power is still curbed by other, non-Article III restraints. 

This short Essay begins to probe whether the same can be said for Article II. Often, debates about executive power focus on Article II and Article II alone: Litigants and scholars ask whether a particular power falls within the President's "conclusive and preclusive" zone of authority. If it does, then the President's authority is unlimited. If it doesn't, then Congress can regulate that exercise of executive power. 

But what if answering the Article II question isn't the end of the story? What if identifying something as a core or inherent Article II power is only the first step? As is true in the Article III context, you might also want to ask whether other provisions might limit that otherwise unlimited power. In other words, perhaps there are external restraints on Article II, too. 

One can say, for instance, that removal is a conclusive and preclusive Presidential power. Under Article II, that power is unlimited. But that doesn't end the inquiry. One would also have to ask whether that plenary Article II power is curbed by constraints outside Article II, like the Due Process Clause. 

Looking at three landmark removal cases, this Essay will show that the Court has already flirted with this paradigm. It has suggested--even in Myers v. United States--that there may be external restraints on the President's otherwise unrestricted Article II removal authority. 

And if that's the case for removal, perhaps other conclusive and preclusive presidential powers are similarly restrained by non-Article II constitutional provisions. This Essay doesn't answer those questions, but it starts that important conversation.