Inherent Powers

Inherent Powers The concept of inherent powers depends on a distinction between powers that are explicitly spelled out in the Constitution or in statutes, and those that a government, or an individual officer of government, possesses implicitly, whether owing to the nature of sovereignty or to a permissive interpretation of the language of the Constitution.

In the American constitutional system, the existence of inherent powers has always been a contested point. Those opposed to the notion of inherent powers argue that the government and all its officers derive their authority from the Constitution, whose terms contain all the powers that the people intended to grant. Justice Hugo Black took this position in his opinion for the Court in Youngstown Sheet & Tube Co. v. Sawyer (1952): “The president's power, if any, … must stem either from an act of Congress or from the Constitution itself” (p. 585). Any powers not granted by the Constitution are, in the words of the Tenth Amendment, “reserved to the States respectively, or to the people.”

The argument in favor of inherent powers is usually advanced on behalf of the president. It derives either from the language of the vesting clauses of Articles I and II of the Constitution, or from the role of the chief executive as commander of the armed forces and as the official primarily responsible for the maintenance of law and order, or from the status of the president as head of a sovereign nation.

The vesting clause of Article I gives to Congress “all legislative power herein granted,” whereas the corresponding clause in Article II says merely that “the executive power” is vested in the president. In his argument before the Supreme Court in the Steel Seizure Case, the solicitor general claimed that “this clause [that is, the vesting clause of Article II] constitutes a grant of all the executive powers of which the Government is capable” (p. 640). Subsequent language in Article II specified certain presidential responsibilities but was not meant to be exhaustive. Supporters of executive power have maintained that the difference in the vesting clauses was indicative of the framers' understanding that executive power, unlike legislative power, was incapable of enumeration.

Abraham Lincoln used the president's command over the military as part of the justification for his actions at the start of the Civil War. As commander in chief of the armed forces, sworn to preserve the Constitution, Lincoln said that his actions, “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity.” He implied that it was the president's responsibility to discern that demand and that necessity, and to meet it.

In declaring independence in 1776, the United States immediately became a sovereign power, and its government assumed all the powers and responsibilities of an independent nation under international law. In 1789, the newly ratified Constitution became “the supreme Law of the Land.” It distributed certain powers to Congress, the president, and the Supreme Court. It did not, however, circumscribe the nation's standing as a sovereign entity, nor did it intend to prevent the federal government from doing what was necessary to sustain that status.

The locus classicus of this argument is Justice George Sutherland's opinion in United States v. *Curtiss‐Wright Export Corp. (1936). Sutherland insisted that the powers of the federal government were different in external and internal affairs. In internal affairs, he wrote, its powers were “specifically enumerated in the Constitution.” Here the Constitution took, from the “general mass of legislative powers then possessed by the states,” those the framers thought best to vest in the federal government (p. 316). But “since the states … never possessed international powers,” these must have come from another source. They came, argued Sutherland, as a result of the separation from Great Britain, to the “colonies in their collective and corporate capacity as the United States of America” (p. 316). These powers, he argued, by their very nature belong to the president, who has confidential sources of information, who alone can keep secrets and act with dispatch.

Thus, concluded Sutherland, when the Constitution specifically delegates a power in the field of foreign relations to another branch (as when it gives Congress power to declare war, or makes treaties subject to the consent of the Senate), it is making an exception. As a rule, the executive is the “sole organ of the federal government in the field of international relations,” and his or her powers must be construed expansively (p. 320). The argument against inherent powers responds by rejecting the distinction between external and internal affairs, noting that the president is bound, without distinction, to “take care that the laws be faithfully executed.”

The Supreme Court generally tries to find authority for governmental acts in the Constitution, but it has also been reluctant to insist on narrow interpretations of the executive powers granted by the Constitution, particularly in the field of foreign relations. In his opinion for a unanimous court in Dames & Moore v. Regan (1981), Justice William Rehnquist noted that President Jimmy Carter's actions in terminating the hostage crisis with Iran went beyond the mandate of the laws. Yet “where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute …, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims” (p. 688). The Court seemed to confirm that the president had inherent powers but that they were conditioned by the interactions of the political branches of the government.

The “war on terror” has given rise to new claims that the president has inherent power and responsibility to protect national security. After the attacks of 11 September 2001, an American citizen, Yasser Esam Hamdi, was captured on a battlefield in Afghanistan. In July 2003 a federal court of appeals in Richmond, Virginia, ruled that President George W. Bush could deny him access to a lawyer and detain him indefinitely as an enemy combatant. It seems likely that the case will be appealed to the Supreme Court.

See also Foreign Affairs and Foreign Policy; Separation of Powers; War Powers.

Donald L. Robinson