Constitution of the United States/Art. II/Sec. 1/Clause 1 President's Role

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article II Executive Branch

Section 1 Function and Selection

Clause 1 President's Role

Clause Text
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Overview of Executive Vesting Clause[edit | edit source]

Under Article II, Section 1, Clause 1, the executive power is vested in a single person--the President of the United States. The nature and extent of the executive power is less clear.[1] Article II identifies exclusive powers of the President, including the President's authority as Commander in Chief and the power to pardon;[2] powers the President shares with the Senate, including the appointments and treaty-making powers;[3] and the President's duties, the most important of which is the duty to "take Care that the Laws be faithfully executed."[4] Moreover, the Supreme Court has recognized that "[b]ecause no single person could fulfill that responsibility," the Take Care Clause implicitly provides the President with authority to supervise subordinate officers assisting with this responsibility.[5] Likewise, Article I provides the President a role in the legislative process, including authority to veto legislation, subject to potential override by a two-thirds vote of both Houses of Congress.[6]

It is less clear from the text of the Constitution whether the executive powers expressly identified in the Constituion are exclusive or illustrative. Whereas the Article I Legislative Vesting Clause provides that "All legislative Powers herein granted shall be vested in a Congress,"[7] thereby distinguishing the powers granted by states from those they retained, the Article II Executive Vesting Clause does not limit the "executive Power" in any way.[8] Consequently, since the earliest days of the Republic, the parameters of the executive power and, in particular, what implicit or residual powers such executive power encompasses have been the subject of debate.

Historical Background on Executive Vesting Clause[edit | edit source]

The nature of the presidency ranked among the most important issues the Framers considered at the Constitutional Convention.[9] Reacting to how royal governors had exercised their powers, the framers of the state constitutions had generally created weak executives and strong legislatures. Likewise, the Articles of Confederation vested the national government's powers in a unicameral congress.[10] Experience during the period during which the Articles of Confederation had been in effect, however, had demonstrated to the delegates that an unfettered legislature, like an uncurbed executive, posed disadvantages, and that a legislature could not confer many of the advantages of a reasonably strong executive.[11] The Framers considered several ways to organize the Executive Branch, including plural executives, selection of the executive or executives by Congress, and whether the executive should be advised by a council.

The constitution of the State of New York, which provided for a Governor who was largely independent of the state legislature, offered one possible template for the Framers. Under New York's constitution, the Governor was directly elected by the people for three-year terms and eligible for re-election indefinitely. Because the state legislature did not select the Governor, the Governor was less beholden to it. Except with regard to appointments and vetoes, the Governor's decisions were unencumbered by a council. The Governor was also in charge of the militia, possessed the power to pardon, and was responsible for ensuring that the laws were faithfully executed.[12]

The Virginia Plan offered an alternative structure to that of the New York constitution. Under the Virginia Plan, the legislature would select the executive but would not be able to change the executive's salary during the executive's term in office. In addition, the executive would be ineligible for re-election, thereby reducing any incentive the executive might have to be overly deferential to the legislature. The Virginia Plan also provided for a council of revision, which included the executive, that could negate national and state legislation. The Virginia Plan provided that the executive power was the power to "execute the national laws" and to "enjoy the Executive rights vested in Congress by the Confederation," but it left open whether the executive would be a single or plural position.[13]

When the executive portion of the Virginia Plan was considered on June 1, 1787, James Wilson of Pennsylvania moved that the executive should consist of a single person.[14] In the course of his remarks, Wilson argued for a strong executive, directly elected by the people so that the executive would not be dependent on Congress or state legislatures. Wilson further proposed that the executive be eligible for reelection and granted power to negate legislation with the concurrence of a council of revision.[15] The vote on Wilson's motion was postponed until the method of selection, term, and mode of removal of, and powers to be conferred on the executive had been considered and subsequently approved.[16]

Ultimately, the Framers decided on a single executive and did not provide for an executive council, which would have participated in exercising the executive's veto, appointments, and treaty-making powers.[17] Instead, the Framers granted the Senate power to "advise and consent" on appointments and treaties[18] and gave the President power to require the "principal Officer in each of the executive Departments" to provide their "Opinion, in writing" on "any Subject relating to the Duties of their respective Offices."[19]

The Committee of Detail reported draft language providing that the executive be designated the "President of the United States,"[20] which the Convention accepted without discussion.[21] The same clause also provided that the President's title be "His Excellency,"[22] and, while this language was also accepted without discussion,[23] the Committee of Style and Arrangement subsequently omitted it from the final text without providing any reason.[24]

Early Perspectives on Executive Power[edit | edit source]

While the Article I Legislative Vesting Clause provides that "All legislative Powers herein granted shall be vested in a Congress,"[25] thereby distinguishing the legislative powers that the states had granted to the National Government from those the states retained, the Article II Executive Vesting Clause refers only to a general "executive Power," which is vested in a single person--the President.[26] While the Constitution expressly identifies specific powers and duties that belong to the President--for example, the power to pardon and the duty to take care that the laws be faithfully enforced--the Founders differed on whether those powers were exclusive or illustrative.

The First Congress considered the parameters of the executive power and, in particular, the President's power to remove Executive Branch officers absent the consent of the Senate, the acquiescence of which is necessary for such Executive Branch officers' appointment.[27] Known as the Debate of 1789, the First Congress considered the President's removal power while it was establishing the Department of State.[28] As one commentator has noted: "Congress tacitly recognized the existence of an unrestrained presidential removal power from 1789 to 1867, and it developed into one of [the President's] most effective instruments for control of the executive branch."[29] While Congress subsequently passed laws limiting the President's ability to remove Executive Branch officers,[30] the Supreme Court did not address such a law until 1926 in Myers v. United States.[31]

Similar questions arose with respect to the President's authority over foreign affairs.[32] After President George Washington issued a proclamation declaring the United States neutral when France and Great Britain went to war in 1793, Alexander Hamilton and James Madison took competing positions on whether President Washington had exceeded his constitutional authority. Arguing that Article II does not enumerate all executive powers,[33] Hamilton wrote:

The enumeration [of executive powers in the Constitution] ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.7 Works of Alexander Hamilton 76, 80-81 (J. C. Hamilton ed., 1851).

Hamilton continued: "The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument."[34] Rejecting Hamilton's view that the Constitution granted the President such broad powers, James Madison argued that, if executive powers were unfettered, "no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative."[35]

Unsurprisingly, Presidents have tended to interpret the Executive Vesting Clause's provision of executive power expansively. For example, President Thomas Jefferson justified the Louisiana Purchase based on implied executive power.[36]

The President's Powers, Myers, and Seila[edit | edit source]

In 1926, Chief Justice and former President William Taft addressed the President's removal power in Myers v. United States, holding that the executive power includes the power to remove Executive Branch officers.[37] Myers concerned a law that required the Senate's advice and consent for the President to remove a Postmaster from office. In a 6-3 decision for the President, Chief Justice Taft reasoned that the removal power was necessary for the President to fulfill his constitutional duty to enforce the laws.[38] Absent power to hold subordinate Executive Branch officers accountable by removing them if necessary, the President would not be able to fulfill his obligation to "take Care that the Laws be faithfully executed."[39] Holding the removal power to be constitutionally vested in the President,[40] the Myers Court observed that powers vested in Congress must be strictly construed in favor of powers retained by the President.[41]

In the 1935 decision Humphrey's Executor v. United States[42] and the 1988 decision Morrison v. Olson, the Supreme Court[43] upheld limits on the President's removal power. However, the Court subsequently emphasized that those cases were limited to specific circumstances.[44] In Humphrey's Executor, the Court held that Congress could constitutionally provide that commissioners on the Federal Trade Commission (FTC) could only be removed for cause. The Court reasoned that "good-cause tenure" was permissible for the principal officers of independent agencies that performed a "quasi-legislative and quasi-judicial" role because "Congress could require [an agency] 'to act . . . independently of executive control.'"[45]

In Morrison, the Court examined the Ethics in Government Act of 1978, which provided for independent counsels to investigate and prosecute certain high-ranking government officials.[46] Under the independent counsel statute, the Attorney General notifies a special Article III court if he believes there are sufficient grounds to investigate a senior government official and the special court appoints a special counsel to investigate and, if warranted, prosecute. The Attorney General can only remove the special counsel for cause as prescribed in the statute.[47] Consequently, the independent counsel is generally free from Executive Branch supervision. After assessing how the law impacted executive power and whether Congress had attempted to aggrandize itself or enlarge judicial power at the executive's expense, the Court upheld for-cause removal for independent counsels.[48]

Notwithstanding Humphrey's Executor and Morrison, the Court later clarified that "the President's removal power is the rule rather than the exception."[49] In its 2010 decision, Free Enterprise Fund v. Public Accounting Oversight Board, the Court held unconstitutional a statute that structured a government office to restrict the President's ability to remove a principal officer and also restrict the principal officer's ability to remove an inferior officer who "determines the policy and enforces the laws of the United States."[50] The Court explained: "The President cannot 'take Care that the Laws be faithfully executed' if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly."[51]

In its 2020 decision in Seila Law LLC v. Consumer Financial Protection Board (CFPB), the Court rejected the proposition that Humphrey's Executor[52] and Morrison[53] "establish a general rule that Congress may impose 'modest' restrictions on the President's removal power."[54] Examining the CFPB, the Court noted that it had a single Director, who was insulated from the President's removal power and "accountable to no one."[55] Describing the President's role in the constitutional structure as the link that makes the administrative state answerable to the people, Chief Justice John Roberts, writing for the majority, stated:

The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervison and control of the elected President. Through the President's oversight, "the chain of dependence [is] preserved," so that "the lowest officers, the middle grade, and the highest" all "depend, as they ought, on the President, and the President on the community."Id. (quoting 1 Annals of Cong. 499 (1789)) (James Madison).

Finding the CFPB Director's protection from removal to be unconstitutional, the Court stated: "In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead."[56]

The President's Powers and Youngstown Framework[edit | edit source]

In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court considered the relationship between the President's powers and the powers Congress can exercise.[57] In a concurring opinion, Justice Robert Jackson set forth a framework that the Court has subsequently adopted to assess claims of presidential power.

Youngstown concerned an executive order that President Harry S. Truman issued on April 8, 1952, directing the Secretary of Commerce to seize and operate the Nation's steel industry in order to avert a nationwide strike that he believed would jeopardize national defense during the Korean War.[58] In the executive order, President Truman cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the order to steel executives and the President reported his action to Congress, conceding Congress's power to supersede the order, which Congress did not do.[59] The steel companies sued, a federal district court enjoined the seizure,[60] and the Supreme Court agreed to hear the case prior to a decision by the court of appeals.[61]

By a 6-3 vote, the Court held the seizure unconstitutional. In the controlling opinion, Justice Hugo Black rejected the Solicitor General's argument that the President's action was justified as an exercise of his executive power under Article II, Section 1; by his duty to enforce the laws; and by his power as Commander in Chief.[62] Instead, Justice Black observed that not only was there no statute that expressly or impliedly authorized the President to take possession of the property, but also Congress had refused to authorize seizures of property to prevent work stoppages and settle labor disputes when it considered the Taft-Hartley Act in 1947.[63] Because neither the aggregate of the President's Article II executive powers nor his powers as Commander in Chief supported the action, Justice Black reasoned that the President had sought to exercise a lawmaking power, which the Constitution vests solely in Congress:[64] Even if other Presidents had taken possession of private business enterprises without congressional authority to settle labor disputes, Congress retained its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in it by the Constitution.[65] Consequently, while Congress could have directed the President to seize the steel mills, the President could not seize them absent congressional authorization, even if he believed that such an action "was necessary to avert a national catastrophe."[66]

In his concurring opinion, Justice Jackson outlined a framework for assessing the President's powers depending on its "disjunction or conjunction with those of Congress."[67] Justice Jackson divided presidential actions into three categories that looked at the extent to which the President was acting in concert with Congress. With regard to the first category, he stated:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under thise circumstancies it usually means that the Federal Government as an undivided whole lacks power.Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring).

Describing the second category, Justice Jackson stated:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes at least as a practical matter, enable, if not invite, measure on independent responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.Id. at 637.

The third category addressed situations where the President's actions were contrary to will of Congress. Justice Jackson observed:

When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system.Id. at 637-38 (footnotes omitted).

Justice Jackson viewed the steel seizure as falling into the third category because Congress had adopted statutory policies inconsistent with President Truman's steel seizure. Accordingly, under Justice Jackson's framework, the President's action could only be sustained if the power to seize strike-bound industries was within the President's domain and beyond Congress's control.[68]

Since the decision in Youngstown, the Court has used Justice Jackson's framework when assessing assertions of presidential power.[69] For example in Zivotofsky v. Kerry, the Court applied Justice Jackson's "tripartite framework" to find that because the challenged presidential action "falls into Justice Jackson's third category, his claim must be 'scrutinized with caution,' and he may rely solely on powers the Constitution grants to him alone."[70]

Separation of Powers and Executive Branch Functions[edit | edit source]

In his Commentaries on the Constitution of the United States, Justice Joseph Story noted the importance of an independent executive department to the separation of powers. He observed: "All America have at length concurred in the propriety of establishing a distinct executive department. The principle is embraced in every state constitution; and it seems now to be assumed among us, as a fundamental maxim of government, that the legislative, executive, and judicial departments are to be separate, and the powers of one ought not to be exercised by either of the others."[71]

The Supreme Court has referred to principles of separation of powers when examining congressional actions that may infringe the President's exercise of executive power. For instance, in 1983, the Court in INS v. Chadha[72] struck down the congressional veto as circumventing Article I's bicameralism and presentment requirements to exercise legislative power. In Chadha, the Court suggested that Congress, by providing itself with the ability to veto the Attorney General's decision to suspend deportation of an alien, had enabled itself to participate impermissibly in executing the laws.[73] Writing for the majority, Chief Justice Warren Burger observed that "the powers delegated to the three Branches are functionally identifiable."[74] Under Chadha, when Congress exercises legislative power rather than delegates it, it must follow the prescribed bicameralism and presentment procedures.

In Bowsher v. Synar three years later,[75] the Court held that Congress had unconstitutionally vested executive functions in a Legislative Branch official through the Gramm-Rudman-Hollings Deficit Control Act. The Gramm-Rudman-Hollings Deficit Control Act set maximum deficit amounts for federal spending and directed across-the-board cuts in spending when projected deficits would exceed the target deficits.[76] Each fiscal year, the Comptroller General, who only Congress could remove, had to prepare a report identifying the reductions necessary to meet the deficit target, which the President had to implement. The Court stated: "Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."[77] Because Congress could remove the Comptroller General from office, it could not delegate executive powers to him. The Court stated: "By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function."[78]

In Lujan v. Defenders of Wildlife, the Court held that Congress could not legislate to grant citizens not suffering particularized injuries standing to sue the federal government to compel its compliance with congressional mandates. Such a law, the Court reasoned, would allow Congress to transfer the President's Take Care Clause duty to the Judiciary.[79]

The Court emphasized the importance of the separation of powers in Seila Law LLC v. Consumer Financial Protection Board (CFPB) in which the Court held that Congress encroached on Executive Branch powers when it limited the President's ability to remove the head of an independent agency to "for cause" removal.[80] In Seila, the Court noted that Congress had "vest[ed] significant governmental power in the hands of a single individual accountable to no one"[81] thereby violating the separation of powers.[82] Similarly, in Collins v. Yellen, the Court ruled that Congress could not restrict the President's authority to remove the director of the Federal Housing Finance Agency, which had a structure similar to the CFPB.[83]

Major Questions Doctrine and Administrative Agencies[edit | edit source]

In several twenty-first century decisions with significant implications for the administrative state, the Court held that under the "major questions doctrine," the Executive Branch cannot interpret ambiguous legislation to effectuate sweeping changes of national consequence. Instead, Congress must, at a minimum, provide clear authorization that it intends to grant the Executive Branch such far-reaching powers.

In its 2014 decision in Utility Air Regulatory Group v. Environmental Protection Agency (EPA), the Court found that EPA could not construe the Clean Air Act (CAA) to enable it to regulate millions of small sources of air pollution, including hotels and office buildings, when Congress had not sought to regulate these entities under the CAA in the past.[84] Although the Court did not explicitly refer to the major questions doctrine, it held that an agency exceeds its regulatory authority when (1) the agency's action involves an issue of "vast 'economic and political significance,'" and (2) Congress has not clearly granted the agency authority over the issue.[85] The Court noted that Congress must "speak clearly if it wishes to assign to an agency decisions of vast economic and political significance."[86]

The Court's concern about the Executive Branch establishing law that exceeded the authority Congress had delegated was also evident during the coronavirus disease 2019 (COVID-19) pandemic. For example, in August 2021, the Court vacated a lower court's stay, effectively halting an eviction moratorium issued by the Centers for Disease Control and Prevention (CDC).[87] The Court noted that the CDC had no legal authority to mandate an eviction moratorium and that Congress itself had declined to extend the eviction moratorium.[88] Likewise, in National Federation of Independent Business v. Department of Labor, the Court stayed the Occupational Safety and Health Administration's (OSHA) COVID-19 vaccine mandate on the grounds that the plaintiffs were likely to succeed on the merits of their claim that OSHA did not have authority to require that "84 million Americans . . . either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense."[89] By comparison, on the same day, the Court vacated a stay of a a more limited vaccine mandate from the Secretary of Health and Human Services requiring that facilities receiving Medicare and Medicaid funding "ensure that their staff--unless exempt for medical or religious reasons--are vaccinated against COVID-19."[90] In reaching this decision, the Court agreed that "the Secretary's rule falls within the authorities that Congress has conferred upon him."[91]

In its 2022 decision West Virginia v. EPA, the Court held that EPA exceeded its CAA Section 111(d) authority[92] in the 2015 Clean Power Plan (CPP) by requiring "generation shifting" whereby coal-fired power plants would "reduce their own production of electricity or subsidize increased generation by natural gas, wind, or solar sources."[93] Stating that "[i]t is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme,"[94] the Court observed: "A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."[95] Examining EPA's assertion that Section 111(d) provided EPA authority to require generation shifting, the Court noted that Section 111(d) was a little-used statutory "gap-filler" that allowed EPA to regulate emissions not covered by the CAA National Ambient Air Quality Standards (NAAQS)[96] or Hazardous Air Pollutants (HAP) programs.[97] In light of this, the Court held, Section 111(d) could not be read as granting EPA power to transform the national economy by adopting a "regulatory program that Congress had conspicuously and repeatedly declined to enact itself."[98]

The President's Foreign Affairs Power, Curtiss-Wright, and Zivotofsky[edit | edit source]

The extent of the President's foreign affairs power has been subject to debate since the earliest days of the Republic.[99] The Constitution provides that the President "shall receive Ambassadors and other public Ministers."[100] In his Commentaries on the Constitution of the United States, Justice Joseph Story noted, "If the executive receives an ambassador, or other minister, as the representative of a new nation . . . it is an acknowledgment of the sovereign authority de facto of such new nation or party."[101] In addition, Article II provides that the President, with the advice and consent of the Senate, shall "make Treaties" and "shall appoint Ambassadors" and "other public Ministers and consuls."[102]

Writing for the Court in the 1936 United States v. Curtiss-Wright Export Corp. decision,[103] Justice George Sutherland reasoned that the the President "has the sole power to negotiate treaties,"[104] although the President requires the Senate's advice and consent to complete them.[105] In Curtiss-Wright, the Curtiss-Wright Export Corp. challenged an embargo President Franklin D. Roosevelt had imposed pursuant to a congressional delegation. Indicted for violating the embargo, Curtiss-Wright argued that Congress had impermissibly delegated a legislative power to the President when it granted the President power to impose the embargo. Writing for a 7-1 majority in favor of the government, Justice Sutherland posited that the National Government's power in foreign relations is inherent. Consequently, the limits on Congress's ability to delegate power relating to domestic areas, Justice Sutherland reasoned, did not apply in the area of foreign affairs. Justice Sutherland stated:

The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. . . . As a result of the separation from Great Britain . . . . the powers of external sovereignty passed from the Crown . . . to the colonies in their collective and corporate capacity as the United States of America . . . . The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the Federal Government as necessary concomitants of nationality. . . . In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.299 U.S. at 315-16, 318, 319.

Notwithstanding Curtiss-Wright, the Court has recognized that the President may be subject to the delegated powers doctrine in matters implicating foreign relations.[106] For instance, in Kent v. Dulles,[107] the Court held that the standards that apply to congressional delegations to the President of domestic authorities likewise applied to a congressional delegation to the President of authority to issue passports.[108]

The Supreme Court's decision in Zivotofsky v. Kerry appears to be the first instance in which the Court held that an act of Congress unconstitutionally infringed upon a foreign affairs power of the President.[109] The case concerned a legislative enactment requiring the Secretary of State to identity a Jerusalem-born U.S. citizen's place of birth as "Israel" on his passport if requested by the citizen or his legal guardian.[110] The State Department had declined to follow this statutory command, citing long-standing executive policy of declining to recognize any country's sovereignty over the city of Jerusalem.[111] It argued the statute impermissibly intruded upon the President's constitutional authority over the recognition of foreign nations and their territorial bounds, and attempted to compel "the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns."[112]

The Zivotofsky Court evaluated the State Department's non-adherence to a statutory command using the framework established by Justice Robert Jackson's concurring opinion in Youngstown, under which executive action taken in contravention of a legislative enactment will only be sustained if the President's asserted power is both "exclusive" and "conclusive" on the matter.[113] The Constitution does not specifically identify the recognition of foreign governments among either Congress's or the President's enumerated powers. But in an opinion that employed multiple modes of constitutional interpretation, the Court concluded that the Constitution not only conferred recognition power to the President, but also that this power was not shared with Congress.

In its analysis, the Court first examined "the text and structure of the Constitution," which it construed as reflecting the Founders' understanding that the President exercises the recognition power.[114] In particular, the Court focused on the President's responsibility under the Reception Clause to "receive Ambassadors and other public Ministers."[115] At the time of the founding, the Court reasoned, receiving ambassadors of a foreign government was tantamount to recognizing the foreign entity's sovereign claims, and it was logical to infer "a Clause directing the President alone to receive ambassadors" as "being understood to acknowledge his power to recognize other nations."[116] In addition to the Reception Clause, Zivotofsky identified additional Article II provisions as providing support for the inference that the President retains the recognition power,[117] including the President's power to "make Treaties" with the advice and consent of the Senate,[118] and to appoint ambassadors and other ministers and consuls with Senate approval.[119]

The Zivotofsky Court emphasized "functional considerations" supporting the Executive's claims of exclusive authority over recognition,[120] stating that recognition is a matter on which the United States must "speak with . . . one voice,"[121] and the Executive Branch is better suited than Congress to exercise this power for several reasons, including its "characteristic of unity at all times," as well as its ability to engage in "delicate and often secret diplomatic contacts that may lead to a decision on recognition" and "take the decisive, unequivocal action necessary to recognize other states at international law."[122]

The Court also concluded that historical practice and prior jurisprudence gave credence to the President's unilateral exercise of the recognition power. The Court acknowledged that the historical record did not provide unequivocal support for this view, but characterized "the weight" of historical evidence as reflecting an understanding that the President's power over recognition is exclusive.[123] Although the Executive had consistently claimed unilateral recognition authority from the Washington Administration onward, and Congress had generally acquiesced to the President's exercise of such authority, there were instances in which Congress also played a role in matters of recognition. But the Zivotofsky Court observed that in all earlier instances, congressional action was consistent with, and deferential to, the President's recognition policy, and the Court characterized prior congressional involvement as indicating "no more than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power."[124] The Court also stated that a "fair reading" of its prior jurisprudence demonstrated a long-standing understanding of the recognition power as an executive function, notwithstanding "some isolated statements" in those cases that might have suggested a congressional role.[125]

Having determined that the Constitution assigns the President exclusive authority over recognition of foreign sovereigns, the Zivotofsky Court ruled that the statutory directive that the State Department honor requests of Jerusalem-born U.S. citizens to have their passports list their birthplace as "Israel" was an impermissible intrusion on the President's recognition authority. According to the Court, Congress's authority to regulate the issuance of passports, though wide in scope, may not be exercised in a manner intended to compel the Executive "to contradict an earlier recognition determination in an official document of the Executive Branch" that is addressed to foreign powers.[126]

While the Zivotofsky decision establishes that the recognition power belongs exclusively to the President, its relevance to other foreign affairs issues remains unclear. The opinion applied a functionalist approach in assessing the exclusivity of executive power on the issue of recognition but did not opine on whether this approach was appropriate for resolving other inter-branch disputes concerning the allocation of constitutional authority in the field of foreign affairs. The Zivotofsky Court also declined to endorse the Executive's broader claim of exclusive or preeminent presidential authority over foreign relations, and it appeared to minimize the reach of some of the Court's earlier statements in Curtiss-Wright[127] regarding the expansive scope of the President's foreign affairs power.[128] The Court also repeatedly noted Congress's ample power to legislate on foreign affairs, including on matters that precede and follow from the President's act of foreign recognition and in ways that could render recognition a "hollow act."[129] For example, Congress could institute a trade embargo, declare war upon a foreign government that the President had recognized, or decline to appropriate funds for an embassy in that country. While all of these actions could potentially be employed by the Legislative Branch to express opposition to executive policy, they would not impermissibly interfere with the President's recognition power.[130]

Term of the President[edit | edit source]

Article II, Section 1, Clause 1, provides for the President and Vice President to serve four-year terms. The Framers generally appear to have contemplated that, under the Constitution, the President, like Representatives and Senators, would not be subject to term limits but could run for office "as often as the people of the United States shall think him worthy of their confidence."[131] However, there was much debate and concern that the Constitution might grant the President too much power and that, as Thomas Jefferson observed, "the perpetual re-eligibility of the President" could produce "cruel distress to our country even in your day and mine."[132] Following precedent established by George Washington, the idea that no President would hold office for more than two terms was generally regarded as a fixed tradition until President Franklin Delano Roosevelt sought and won reelection for a third and fourth term in 1940 and 1944, respectively. In 1951, the states ratified the Twenty-Second Amendment limiting the President to two terms in office.[133]

When considering the term of the President during the Constitutional Convention, the Framers weighed how the President would be selected, whether a President should serve multiple times, and how to mitigate the danger that the Presidency might evolve into a "hereditary Monarchy"[134] or become the "mere creature" of Congress.[135] On June 1, 1787, James Wilson of Pennsylvania proposed to the Committee of the Whole that the term of the President be three years, "on the supposition that a re-eligibility would be provided for,"[136] while Charles Pinckney of South Carolina proposed a term of seven years.[137] George Mason of Virginia urged a term of "seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment."[138]

Although the Committee of the Whole voted for a seven-year term,[139] debate continued over how to select the President and whether he should be eligible for reelection. Efforts to offset the longer seven-year term with a bar on re-eligibility were met by concerns that prohibiting reelection would, among other things, "destroy the great motive to good behavior, the hope of being rewarded by a re-appointment."[140] Revisiting the appropriate term of office for the President in conjunction with whether the President should be eligible for reelection,[141] the Convention considered proposals for, among other things, fifteen-year, eleven-year, eight-year, six-year, and three-year terms,[142] as well as an indefinite term during Good Behavior.[143] In late August 1787, the Convention referred the matter to the Committee of Eleven, which, in turn, proposed a term of four years without a bar to reelection.[144]

While the four-year term was shorter than the originally contemplated seven-year term, critics of the Constitution maintained that it would still allow the President to establish a dangerous influence over the United States.[145] Responding to such concerns in the Federalist Papers, Alexander Hamilton explained the advantages of a four-year term as striking a balance between the "personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices."[146] He stated:

Between the commencement and termination of such a [four-year] period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man endued with a tolerable portion of fortitude. . . . [A] duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. Id.

Hamilton also cited the three-year New York gubernatorial term to support that the President would be unlikely to acquire undue power across the entirety of the United States over four years when the Governor of New York had not done so over the much smaller state of New York over three years.[147]

In his Commentaries of the Constitution of the United States, Justice Joseph Story observed that the four-year term the Framers adopted for the President is "intermediate between the term of office of the senate, and that of the house of representatives" and, as a result, "[i]n the course of one presidential term, the house is, or may be twice recomposed; and two-thirds of the senate changed, or re-elected."[148] Because the President's four-year term is between the two- and six-year terms of the House and Senate, the President is subject to pressures that drive the House's need to respond to the people's immediate demands, even though such demands may be short-lived, and those that facilitate the Senate's greater focus on long-term objectives because its six-year term provides some insulation from political winds.[149]

  1. Art. II, Sec. 1, Clause 1 President's Role.
  2. Id. art. II, § 2, cl. 1. See Art. II, Sec. 2, Cl. 1: Historical Background on Commander in Chief Clause.
  3. Id. art. II, § 2, cl. 2. See Art. II, Sec. 2, Cl. 1: Overview of Pardon Power.
  4. Id. art. II, § 3. See Art. II, Sec. 3: Overview of Take Care Clause.
  5. Seila Law LLC v. Consumer Fin. Protection Bureau, No. 19-7, slip op. at 2 (U.S. June 29, 2020). See also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 492-93 (2010).
  6. Art. I, Sec. 7, Clause 2 Role of President. See Art. I, Sec. 7, Cl. 2: Overview of Presidential Approval or Veto of Bills.
  7. Id. art. I, § 1, cl. 1 (emphasis added). See Art. I, Sec. 1: Overview of Legislative Vesting Clause.
  8. Id. art. II, § 1, cl. 1.
  9. The background and the action of the Convention is comprehensively examined in Charles Thach, The Creation of the Presidency 1775-1789 (1923). See also John Hart, The American Presidency in Action 1789 (1948).
  10. 3 Joseph Story, Commentaries on the Constitution of the United States § 1407 (1833) ("Under the confederation there was no national executive. The whole powers of the national government were vested in a congress, consisting of a single body; and that body was authorized to appoint a committee of the states, composed of one delegate from every state, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine states, as nine states should consent to. This want of a national executive was deemed a fatal defect of the confederation.").
  11. Thach, The Creation of the Presidency, supra note here, at 1-64.
  12. Alexander Hamilton observed the similarities and differences between the President and the New York Governor. The Federalist No. 69 (Alexander Hamilton). See N.Y. Const. of 1777 arts. XVII-XIX, reprinted in 5 Francis Thorpe, The Federal and State Constitutions (1909).
  13. For discussion of the plans offered at the Constitutional Convention and the resulting debate, see Thach, The Creation of the Presidency, supra note here at 65-91. For the Virginia Plan, see 1 Records of the Federal Convention of 1787 20-23 (Max Farrand ed., 1911)[hereinafter Farrand's Records].
  14. Id. at 65.
  15. Id. at 65-73.
  16. Id. at 93.
  17. The last proposal for a council was voted down on September 7, 1787. 2 Farrand's Records 542.
  18. See Art. II, Sec. 2, Cl. 2: Overview of President's Treaty-Making Power; Art. II, Sec. 2, Cl. 2: Overview of Appointments Clause.
  19. See Art. II, Sec. 2, Cl. 1: Executive Departments.
  20. 1 Farrand's Records, supra note here, at 185.
  21. Id. at 401.
  22. Id. at 185.
  23. Id. at 401.
  24. Id. at 597.
  25. Art. I, Section 1 Legislative Vesting Clause (emphasis added).
  26. Id. art. II, § 1, cl. 1.
  27. See David P. Currie, the Constitution in Congress: The Federalist Period 1789-1801, at 36-41 (1997) (discussing James Madison's proposal for a department of foreign affairs). In the Federalist No. 77, Alexander Hamilton commented that the Senate's consent was necessary for the President to remove an Executive Officer, stating: "The consent of [the Senate] would be necessary to displace as well as to appoint. . . . Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself." The Federalist No. 77 (Alexander Hamilton). While Congress expressly referred to the President's removal power in some legislation, e.g., Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 87; Act of May 15, 1820, ch. 102, 3 Stat. 582, the Supreme Court in Myers v. United States observed that Congress adopted these provisions "to show conformity to the legislative decision of 1789." Myers v. United States, 272 U.S. 52, 146 (1926).
  28. For discussion on the Debate of 1789, see Art. II, Sec. 2, Cl. 2: Decision of 1789 and Removals in Early Republic. See also Charles Thach, The Creation of the Presidency 1775-1789 124-49 (1923).
  29. C. Herman Pritchett, Constitutional Law of the Federal System 293 (1984). See also Act of May 15, 1820 (providing for removal of officers "at pleasure" of the President).
  30. Tenure of Office Act of 1867, ch. 154, 14 Stat. 430 (requiring, among other things, for the President to have the Senate's consent to remove the Secretary of War and certain other department heads); Act of July 12, 1876, ch. 179, 19 State. 80, 81 (providing that "Postmasters of the first, second and third classes shall be appointed by the President by and with the advice and consent of the Senate and shall hold their officers for four years unless sooner removed or suspended according to law."). See also United States v. Perkins, 116 U.S. 483 (1886). In Perkins, the Court addressed whether the Secretary of the Navy could discharge a naval cadet-engineer at will notwithstanding that the Act of August 5, 1882 provided that naval officers could not be discharged except pursuant to a court-martial. Ruling for the naval cadet-engineer, the Court stated: "The head of a Department has no constitutional prerogative of appointments to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto." Id. at 485. The Court, however, noted that it was not addressing a situation where an officer was appointed by the President with the advice and consent of the Senate. Id. ("Whether or not Congress can restrict the power of removal incident to the power of appointment of those officers who are appointed by the President by and with the advice of the Senate under the authority of the Constitution (article 2, section 2) does not arise in this case and need not be considered.").
  31. The Court discussed the President's removal power in dicta in Ex parte Hennen, 38 U.S. (39 Pet.) 230 (1839) (recognizing authority of a District Judge to remove a clerk of the court). For further discussion of the removal power, see Art. II, Sec. 2, Cl. 2: Overview of Removal of Executive Branch Officers .
  32. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 174-82 (1997).
  33. Id. See also Charles Thomas, American Neutrality in 1793: A Study in Cabinet Government (1931).
  34. Id. (emphasis added).
  35. 1 Letters and Other Writings of James Madison 621 (J.B. Lippincott & Co., 1865).
  36. For discussion of the constitutionality of the Louisiana Purchase, see Everett Brown, The Constitutional History of the Louisiana Purchase, 1803-1812 (1920). For discussion of how the Jeffersonians and Federalists approached executive powers, see Leonard White, The Jeffersonians: A Study in Administrative History 1801-1829 (1951); Leonard White, The Federalists: A Study in Administrative History (1948).
  37. 272 U.S. 52 (1926). See Edward Corwin, The President's Removal Power under the Constitution, in 4 Selected Essays on Constitutional Law 1467 (1938).
  38. Id. art. II, § 3. See Art. II, Sec. 3: Overview of Take Care Clause.
  39. 4 Selected Essays on Constitutional Law supra note , at art. II, § 3. See Art. II, Sec. 3: Overview of Take Care Clause.
  40. Charles Thach, The Creation of the Presidency, 1775-1789 92-123 (1923).
  41. Myers v. United States, 272 U.S. 52, 163-64 (1926).
  42. 295 U.S. 602 (1935). See also Wiener v. United States, 357 U.S. 349 (1958).
  43. 487 U.S. 654, 685-93 (1988). Morrison concerned the Title VI of the Ethics of Government Act of 1978, which provided for the appointment of independent counsels who the Attorney General could only remove for "good cause." See also United States v. Perkins, 116 U.S. 483 (1886).
  44. Seila Law LLC v. CFPB, No. 19-7, slip op. at 7 (U.S. June 29, 2020).
  45. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 493 (2010) (quoting Humphrey's Executor, 295 U.S. 602, 627-29 (1935).
  46. See 28 U.S.C. §§ 591-599.
  47. Ethics in Government Act of 1978, Pub. L. No. 95-521, title VI, 92 Stat. 1824, 1867 (codified as amended in 28 U.S.C. §§ 49, 591-599).
  48. Morrison v. Olson, 487 U.S. at 693-96.
  49. Seila Law LLC v. CFPB, No. 19-7, slip op. at 27 (U.S. June 29, 2020). For discussion, on the President's removal authority in the twenty-first century, see Art. II, Sec. 2, Cl. 2: Twenty-First Century Cases on Removal.
  50. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010).
  51. Id.
  52. 295 U.S. 602 (1935).
  53. 487 U.S. 654 (1988). While acknowledging that the independent counsel statute restricted a constitutionally delegated function (law enforcement), the Morrison Court upheld the statute, using a flexible analysis that emphasized that neither the Legislative nor the Judicial Branch had aggrandized its power and that the statute, while infringing on executive power, did not impermissibly interfere with the President's constitutionally assigned functions. Id.
  54. Seila Law LLC v. CFPB, No. 19-7, slip op. at 26 (U.S. June 29, 2020).
  55. Id. at 23.
  56. Id.
  57. 343 U.S. 579 (1952). For additional discussion on Youngstown, see Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (1977).
  58. E.O. 10340, 17 Fed. Reg. 3139 (1952).
  59. H. Doc. No. 422 (1952); H. Doc. No. 496 (1952).
  60. 103 F. Supp. 569 (D.D.C. 1952).
  61. The court of appeals stayed the district court's injunction pending appeal. 197 F.2d 582 (D.C. Cir. 1952). For the Supreme Court decision bringing the action up, see 343 U.S. 937 (1952).
  62. Youngstown, 343 U.S. at 587-88.
  63. Id. at 586.
  64. Id. at 588.
  65. Id. 585-89.
  66. Id. at 585-86.
  67. Id. at 635 (Jackson, J., concurring). See also Trump v Mazars USA, LLP, No. 19-715, slip op. at (U.S. July 9, 2020) ("Congress and the President--the two political branches established by the Constitution--have an ongoing relationship that the Framers intended to feature both rivalry and reprocity."). Justice Jackson's concurrence has been described as having "canonical status." Georgia v. Public.Resource.Org, Inc., No. 18-1150, slip op. at 48, n.10 (U.S. Apr. 27, 2020) (Thomas, J., dissenting).
  68. Id at 639, 640. Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936). In Dames & Moore v. Regan, 453 U.S. 654, 659-62, 668-69 (1981), the Court turned to Youngstown as embodying "much relevant analysis" on an issue of presidential power. In Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), the Court cited Youngstown with approval, as did Justice Anthony Kennedy, in a concurring opinion joined by three other Justices, id. at 638.
  69. See Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015).
  70. Id.
  71. 3 Joseph Story, Commentaries on the Constitution of the United States § 1410 (1833).
  72. 462 U.S. 919 (1983).
  73. The Court stated: "Disagreement with the Attorney General's decision on Chadha's deportation . . . involves determinations of policy that Congress can implement in only one way Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." 462 U.S. at 954-55. See also Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
  74. Chadha, 462 U.S. at 951.
  75. 478 U.S. 714 (1986)
  76. The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1037.
  77. 478 U.S. at 732-33.
  78. Id. at 734.
  79. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-78 (1992).
  80. Seila Law LLC v. CFPB, No. 19-7, slip op. at 26 (U.S. June 29, 2020).
  81. Id. at 23.
  82. Id. at 27.
  83. Collins v. Yellen, No. 19-422(U.S. June 23, 2021).
  84. Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014).
  85. Id. at 324.
  86. Id.
  87. Ala. Ass'n of Realtors v. Dep't of Health and Hum. Servs., No. 21A23, slip op. at 3 (U.S. Aug. 26, 2021) (per curiam).
  88. Id. at 6-8.
  89. Nos. 21A244 and 21A247, slip op. at 8 (U.S. Jan. 13, 2022) (per curiam).
  90. Biden v. Missouri, Nos. 21A240 and 21A241, slip op. at 1 (U.S. Jan. 13, 2022) (per curiam).
  91. Id. at 4.
  92. Clean Air Act, 42 U.S.C. § 7411(d)
  93. West Virginia v. EPA, No. 20-1530, slip op. (U.S. June 30, 2022). Through the CPP, EPA sought to reduce carbon dioxide emissions that were contributing to global warming by shifting the Nation's energy from coal-fired generation to natural gas and renewables. Id. at 10. According to EPA estimates at the time it issued the rule, such changes "would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors." Id.
  94. Id. at 31.
  95. Id.
  96. 42 U.S.C. §§ 7408-7410 (requiring states to adopt plans to comply with EPA standards for specified air pollutants).
  97. Id. § 7412 (requiring EPA to set standards to achieve "the maximum degree of reduction of emissions" for new and existing major sources of non-NAAQS hazardous air pollution that can be achieved using the "best existing technologies and methods").
  98. EPA, No. 20-1530, slip op. at 20.
  99. See Art. II, Sec. 1, Cl. 1: Historical Background on Executive Vesting Clause.
  100. See Art. II, Sec. 3: Early Doctrine on Receiving Ambassadors and Public Ministers.
  101. 3 Joseph Story, Commentaries on the Constitution of the United States § 1560 (1833).
  102. Art. II, Sec. 2, Clause 2 Advice and Consent. See Art. II, Sec. 2, Cl. 2: Overview of President's Treaty-Making Power.
  103. 299 U.S. 304 (1936).
  104. Zivotofsky v. Kerry, 576 U.S. 1, 13 (2014).
  105. See Art. II, Sec. 2, Cl. 2: Overview of President's Treaty-Making Power.
  106. E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice Harlan Stone); Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion, per Justice Black).
  107. 357 U.S. 116, 129 (1958).
  108. Id. See also Haig v. Agee, 453 U.S. 280 (1981). For Haig's reliance on Curtiss-Wright, see id. at 291, 293-94 & n.24, 307-08. But see Dames & Moore v. Regan, 453 U.S. 654, 659-62 (1981). Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director's dismissal of employee), with Dep't of the Navy v. Egan, 484 U.S. 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security-clearance determination in reviewing an adverse action and noticing favorably President's inherent power to protect information without any explicit legislative grant). In Loving v. United States, 517 U.S. 748 (1996), the Court found that, although Congress had delegated authority over the death penalty provisions of military law to the President absent standards to guide the President's exercise of the authority, standards were not required because the President, as Commander in Chief had responsibility to superintend the military and Congress and the President had interlinked authorities with respect to the military. Where the entity exercising delegated authority possesses independent authority over the subject matter, the Court noted, familiar limitations on delegation do not apply. Id. at 771-74.
  109. Zivotofsky v. Kerry, 576 U.S. 1 (2015). It appears that in every prior instance where the Supreme Court considered executive action in the field of foreign affairs that conflicted with the requirements of a federal statute, the Court had ruled the executive action invalid. See id. at 62 (Roberts, C.J., dissenting) ("For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs."); Medellin v. Texas, 552 U.S. 491 (2008) (President could not direct state courts to reconsider cases barred from further review by state and federal procedural rules in order to implement requirements flowing from a ratified U.S. treaty that was not self-executing, as legislative authorization from Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribunals convened by presidential order did not comply with the Uniform Code of Military Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v. Barreme, 6 U.S. (2 Cranch.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized during quasi-war with France, when Congress had not authorized such seizures).
  110. Foreign Relations Authorization Act, Fiscal Year 2003, Pub L. No. 107-228, § 214(d), 116 Stat. 1350, 1366 (2002) (codified as amended at 7 U.S.C. § 1765d-1).
  111. Zivotofsky. The State Department's Foreign Affairs Manual generally provides that in issuing passports to U.S. citizens born abroad, the passport shall identify the country presently exercising sovereignty over the citizen's birth location. 7 Foreign Affairs Manual § 1330 Appendix D (2008). The Manual provides that employees should "write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem." Id. at § 1360 Appendix D.
  112. Zivotofsky, 576 U.S. at 11-12 (quoting Brief from Respondent at 48).
  113. Id. at 10 (quoting Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring)).
  114. Id. at 10-13
  115. Art. II, Section 3 Duties. Zivotofsky.
  116. Zivotofsky, 576 U.S. at 12-13. The Court observed that records of the Constitutional Convention were largely silent on the recognition power, but that contemporary writings by prominent international legal scholars identified the act of receiving ambassadors as the virtual equivalent of recognizing the sovereignty of the sending state. Id. at 12.
  117. Justice Clarence Thomas, writing separately and concurring in part with the majority's judgment, would have located the primary source of the President's recognition power as the Vesting Clause. Id. at 31-32 (Thomas, J., concurring and dissenting in part with the Court's judgment). The controlling five-Justice opinion declined to reach the issue of whether the Vesting Clause provided such support. Id. at 13-14 (majority opinion).
  118. Art. II, Sec. 2, Clause 2 Advice and Consent.
  119. Id.
  120. Zivotofsky, 576 U.S. at 13.
  121. Id. at 14 (quoting Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 424 (2003) and Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 381 (2000)).
  122. Id.
  123. Id. at 22-23.
  124. Id. The Court observed that in no prior instance had Congress enacted a statute "contrary to the President's formal and considered statement concerning recognition." Id. at 24 (citing Zivotofsky v. Sec'y of State, 725 F.3d 197, 203, 221 (D.C. Cir. 2013) (Tatel, J., concurring)).
  125. See id. at 17. The Court observed that earlier rulings touching on the recognition power had dealt with the division of power between the judicial and political branches of the federal government, or between the federal government and the states. Id. at 17-18 (citing Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) (involving the application of the act of state doctrine to the government of Cuba and stating that "[p]olitical recognition is exclusively a function of the Executive"); United States v. Pink, 315 U.S. 203 (1942) (concerning effect of executive agreement involving the recognition of the Soviet Union and settlement of claims disputes upon state law); United States v. Belmont, 301 U.S. 324 (1937) (similar to Pink ); Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839) (ruling that an executive determination concerning foreign sovereign claims to the Falkland Islands was conclusive upon the judiciary)).
  126. See id. at 31. The Court approvingly cited its description in Urtetiqui v. D'Arcy, 34 U.S. (9 Pet.) 692 (1835), of a passport as being, "from its nature and object . . . addressed to foreign powers." See Zivotofsky.
  127. See United States v. Curtiss-Wright Export Co., 299 U.S. 304 (1936). For further discussion of this case, see Art. II, Sec. 1, Cl. 1: The President's Powers, Myers, and Seila, and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
  128. The majority opinion observed that Curtiss-Wright had considered the constitutionality of a congressional delegation of power to the President, and that its description of the Executive as the sole organ of foreign affairs was not essential to its holding in the case. Zivotofsky, at 20-21.
  129. Id. at 15-16.
  130. Id. at 15-16.
  131. The Federalist No. 69 (Alexander Hamilton).
  132. Letter from Thomas Jefferson to Alexander Donald (Feb. 7, 1788), reprinted in 3 The Founders' Constitution 505 (Philip B. Kurland & Ralph Lerner eds., 2000).
  133. U.S. Const. amend XXII. The Twenty-Second Amendment was adopted largely in response to President Franklin Delano Roosevelt seeking and winning reelection for an unprecedented third and fourth terms in 1940 and 1944, respectively. The Twenty-Second Amendment became a part of the Constitution on February 27, 1951, after it was adopted by Minnesota, which provided the thirty-sixth state that was necessary for adoption of the Amendment. 2 Grossman, Constitutional Amendments 758-759 (2012). For additional discussion on the Twenty-Second Amendment, see Twenty-Second Amendment Presidential Term Limits.
  134. 2 The Records of the Federal Constitution 35 (Max Farrand, ed. 1911) (statement of George Mason of Virginia)[hereinafter Farrand's Records].
  135. Id. at 103 (statement of Gouveneur Morris of Pennsylvania); see also Max Farrand, The Framing of the Constitution 117-118 (1913).
  136. 1 Farrand's Records, supra note here, 68.
  137. Id.
  138. Id.
  139. Id. at 69.
  140. 2 Farrand Records, supra note here, at 33 (statement of Gouverneur Morris of Pennsylvania in support of motion made by William Churchill Houston of New Jersey on July 17, 1787, to strike the bar to reelection).
  141. See id.
  142. See, e.g., 1 Farrand Records, supra note here,; 2 Farrand Records, supra note here, at 102 (Rufus King of Massachusetts also suggested a twenty-year term. However, given that King's proposal was "twenty years . . . [which is] the medium life of princes ", Max Farrand, the editor of the Records of the Constitution, observes that this was likely meant to be ironic, stating, "This might possibly be meant as a caricature of the previous motions in order to defeat the object of them."). See also id. at 100, 112.
  143. Id. at 33-35.
  144. Id. at 497.
  145. See, e.g., The Anti-Federalist Papers, No. 67 (Cato/George Clinton), reprinted in The Complete Federalist and Anti-Federalist Papers 709 (2014) ("It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration, and that a longer time than a year would be dangerous. The deposit of vast trusts in the hands of a single magistrate enables him in their exercise to create a numerous train of dependents. This tempts his ambition, which in a republican magistrate is also remarked to be pernicious, and the duration of his office for any considerable time favors his views, gives him the means and time to perfect and execute his designs; he therefore fancies that he may be great and glorious by oppressing his fellow citizens, and raising himself to permanent grandeur on the ruins of his country.").
  146. The Federalist No. 71 (Alexander Hamilton).
  147. The Federalist No. 69 (Alexander Hamilton). See also The Federalist No. 72 (Alexander Hamilton) (describing five "ill effect[s]" of excluding the President either temporarily or permanently from subsequent terms of office).
  148. 3 Joseph Story, Commentaries on the Constitution of the United States §1432 (1833).
  149. See generally id.