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Constitutional Law: Presidential Inherent Powers

The Law Library of Congress is proud to present four constitutional law items focusing on Presidential Inherent Powers. The four articles are available in their entirety in PDF.

Louis Fisher, "Treaty Negotiation: A Presidential Monopoly?," 38 Pres. Stud. Q. 144 (2008).  This article examines the claim by Justice George Sutherland in United States v. Curtiss-Wright (1936) that the President makes treaties with the advice and consent of the Senate "but he alone negotiates.  Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it."  This statement was dicta  and extraneous to the issue before the Court, but it is also at odds with Senate history and Sutherland's own experience as a U.S. Senator from Utah.  Senators (and Representatives) have often been involved in the negotiation of treaties.

Louis Fisher, "Presidential Inherent Power: The 'Sole Organ' Doctrine," 37 Pres. Stud. Q. 139 (2007).  The executive branch often relies on the "sole organ" doctrine to define presidential power broadly in foreign relations and national security, including assertions of inherent executive power that is not subject to legislative or judicial constraints.  The doctrine draws from a statement by John Marshall when he served as member of the U.S. House of Representatives in 1800: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."  In dicta in the case of United States v. Curtiss-Wright (1936), Justice George Sutherland took Marshall's statement out of context to advocate an independent, plenary, exclusive, and extra-constitutional power for the President, but Marshall made no such claim in his speech or in his public service as Secretary of State and Chief Justice of the Supreme Court.

Louis Fisher, "Invoking Inherent Powers: A Primer," 37 Pres. Stud. Q. 1 (2007).  At various times in American history, Presidents have claimed "inherent" powers to take certain actions in periods of emergency.  President Truman's seizure of steel mills in 1952 is one example.  Another is the claim by President Nixon that he could order domestic surveillance.  Those claims were struck down in court.  This article provides an overview of inherent powers and focuses particularly on its application during the presidency of George W. Bush to military commissions, detaining "enemy combatants," the "torture memos" prepared by attorneys in the Justice Department, extraordinary rendition, and NSA eavesdropping.

Louis Fisher, "The 'Sole Organ' Doctrine," August 2006, a paper prepared for the Law Library as part of a series of studies on presidential power in foreign relations.  The paper provides a detailed examination of the "sole organ" doctrine made popular by Justice George Sutherland in his opinion in United States v. Curtiss-Wright (1936).  The study explains why his use mischaracterizes what John Marshall said in a floor speech in 1800, while a member of the U.S. House of Representatives, and includes critiques and analyses by scholars and judicial citations to "sole organ."  Although the Supreme Court has at times described the President's foreign relations power as "exclusive," it has not denied to Congress its constitutional authority to enter the field and reverse or modify presidential decisions in the area of national security and foreign affairs.

Source: Constitutional Law: Presidential Inherent Powers

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