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...By implied power, he means power grounded in one of the expressly granted presidential authorities, such as the Commander-in-Chief Clause. Fisher means to challenge us to consider whether the president enjoys inherent powers. This is an issue that has great deal of resonance in public discourse regarding presidential power. As Justice Robert Jackson noted in the Steel Seizure case, "the claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy." (1) Especially during the administration of President George W. Bush, assertions of inherent presidential power have been made frequently. Heightening the importance of the question, assertions of inherent power are accompanied by a claim, often merely assumed, that inherent presidential powers are not subject to legal limitations. Such arguments can be found, for example, in the infamous Torture Memo (Office of Legal Counsel 2002, 36-39). The most notable judicial version can be found in an opinion by the Foreign Intelligence Surveillance Court of Review. In dicta, the per curiam opinion observed that "we take for granted that the President does have [inherent authority to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA [Foreign Intelligence Surveillance Act] could not encroach on the President's constitutional power." (2)
I think it is fairly clear that the president does not have inherent power, as Fisher has carefully defined the term, but that the president certainly does hold implied powers. Despite the heat surrounding the debates about presidential power, my conclusion seems uninteresting to me, mainly because it is not apparent what if anything follows from it. The Constitution vests "the executive power.., in a President of the United States of America" (U.S. Constitution, Article II, section l, clause 1). Any power that might be said to be inherent in the president might just as well be said to be implicit in the vesting of "the executive power" in the president. In fact, it is not clear to me that advocates of illimitable presidential power mean to claim for the president inherent power in the sense that Fisher uses that term as opposed to what he deems to be implied power.
The question becomes interesting if it is reformulated a bit to ask whether the president holds power that is broadly or commonly beyond the authority of Congress to limit. There are four different arguments employed on behalf of this construction of presidential power. First, the president might have inherent power of the sort Fisher sets out in the introduction. Second, the president may have implied constitutional power that is properly understood as being beyond statutory limitation. Third, it may be that Congress can limit presidential power by statute where its powers overlap with the president's, but this rarely happens as the president and Congress have power in largely exclusive spheres. Fourth, it may be that whatever power Congress has to constrain the president is as a practical matter ineffectual. In each instance, I believe that the Constitution's structure provides a powerful refutation of the claim.
Inherent Presidential Power
I do not propose an exhaustive historical analysis of the Constitution's framing and ratification. It is, however, worth noting that the Constitution was advertised--by Publius at least--in a way that rejects inherent presidential power. Writing as Publius, James Madison asserted that, in our republic, Congress would be the predominant, and therefore the most dangerous, branch and that the president's power would be quite narrow: "In a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power .... The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits" (Madison, Federalist no. 48).
Chief Justice John Marshall early on established structural analysis as a crucial method for interpreting the Constitution. In a host of cases considering contentious issues of first impression, John Marshall turned to the nature and character of the Constitution as a guide to the meaning of its provisions. For Marshall, the fact of the Constitution's writtenness was key to resolving these questions. In Marbury v. Madison, for example, he emphasized that the Constitution establishes the federal government as a government of limited and enumerated powers. He then deployed his rhetorical talents: "To what purpose are powers limited, and to what purpose is that limitation committed to writing if these limits may, at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed .... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation .... This theory is essentially attached to a written constitution." (3) In other words, the very purpose of writing a constitution is to establish the scope and limits of the government being chartered. If the government, or any branch of it, were to hold power from alternative sources and those alternate authorizations were not subject to constitutional...
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