What powers does the president have that are NOT specified in the Constitution? Executive orders, etc?

Is there a list of powers that have been "assumed" and/or actions presidents have taken that may have been implied (or not) in the language of the Constitution?

A web-site or whatever?

THX!!
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Mr. Bad Day: Please explain how reading the Constitution would inform me of powers "NOT specified in the Constitution".



I hate to be vague, but it depends on who you ask. The Constitution would provide a good starting point because it implies what it leaves unsaid. Specifically, Article I vest Congress with "all legislative powers herein granted." In other words, with only those legislative powers specifically vested. By way of contrast, Article II vest "the executive" in the President, and Article III vest the Judicial Power in the Supreme Court… The first sentence of Article II has been the source of the so-called unitary executive theory, which varies in its particulars. Essentially, the whole of potential executive authority, though unspecified, is vested in the singular President.
To aide in your understanding, it might help to look at the work of the Constitutional Convention. They left the powers of the President largely unspecified, and probably for two reasons. First, they were unsure exactly how to go about listing such powers. Second, they were satisfied that Washington would be the first President, and knowing that, were less afraid of arbitrary exercise of power. Washington breathed life into the Presidency, establishing traditions that have largely endured.
As far as a general list, the best way to understand would be to read Justice Jackson’s concurring opinion in Youngstown Steel (a Supreme Court case). In that case, companies challenged President Truman’s authority to seize control of an industry under his authority as Commander in Chief. While not the majority opinion, Justice Jackson’s opinion is the most quoted opinion on the nature of executive authority under the Constitution. Indeed, both Chief Justice Roberts and Justice Alito cited the opinion during their confirmation hearings.
The basic point of his argument: There are three spheres of Presidential authority. The first, acting with the aid of Congress, gives the President maximum authority. The second, and more dubious, where Congress is silent. The third, and most impotent form of authority is acting contrary to the other branches. While this does not apply with much substance to specific acts or situations, it provides valuable background principles.

Just think of it like this: The President, like Congress despite constitutional differences in the grants of power, is always strongest in defense of his exercise of power when supported by specific Constitutional authority granted by the text of the Constitution. Beyond that, the Court has rarely defined the scope of power belonging to the President.

Post Author: mark

2 thoughts on “What powers does the president have that are NOT specified in the Constitution? Executive orders, etc?

    Mr. Bad Day

    (February 19, 2010 - 11:42 pm)

    You’re going to have to do it the old fashioned way, and read the Constitution.
    References :
    http://www.usconstitution.net/const.html

    Josh R

    (February 20, 2010 - 12:03 am)

    I hate to be vague, but it depends on who you ask. The Constitution would provide a good starting point because it implies what it leaves unsaid. Specifically, Article I vest Congress with "all legislative powers herein granted." In other words, with only those legislative powers specifically vested. By way of contrast, Article II vest "the executive" in the President, and Article III vest the Judicial Power in the Supreme Court… The first sentence of Article II has been the source of the so-called unitary executive theory, which varies in its particulars. Essentially, the whole of potential executive authority, though unspecified, is vested in the singular President.
    To aide in your understanding, it might help to look at the work of the Constitutional Convention. They left the powers of the President largely unspecified, and probably for two reasons. First, they were unsure exactly how to go about listing such powers. Second, they were satisfied that Washington would be the first President, and knowing that, were less afraid of arbitrary exercise of power. Washington breathed life into the Presidency, establishing traditions that have largely endured.
    As far as a general list, the best way to understand would be to read Justice Jackson’s concurring opinion in Youngstown Steel (a Supreme Court case). In that case, companies challenged President Truman’s authority to seize control of an industry under his authority as Commander in Chief. While not the majority opinion, Justice Jackson’s opinion is the most quoted opinion on the nature of executive authority under the Constitution. Indeed, both Chief Justice Roberts and Justice Alito cited the opinion during their confirmation hearings.
    The basic point of his argument: There are three spheres of Presidential authority. The first, acting with the aid of Congress, gives the President maximum authority. The second, and more dubious, where Congress is silent. The third, and most impotent form of authority is acting contrary to the other branches. While this does not apply with much substance to specific acts or situations, it provides valuable background principles.

    Just think of it like this: The President, like Congress despite constitutional differences in the grants of power, is always strongest in defense of his exercise of power when supported by specific Constitutional authority granted by the text of the Constitution. Beyond that, the Court has rarely defined the scope of power belonging to the President.
    References :

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