The President Who Would Not Be King: Executive Power under the Constitution

By Michael W. McConnell

Princeton University Press, 2020 421 pages, $35.00

Reviewed by Louis Fisher

Michael McConnell served as federal appellate judge with the Tenth Circuit from 2002 to 2009. Since that time, he has been with Stanford Law School. His book explores many important constitutional issues regarding presidential power, separation of powers, and the belief in judicial finality. The foreword by Stephen Macedo explains that the book went to press “at a time of intense concern about the erosion of checks on the powers of the American Presidency.”

In the Introduction, McConnell states that the three most recent presidents— George W. Bush (“Bush II”), Barack Obama, and Donald Trump—“have asserted an extraordinary power to act both domestically and globally without congressional approval and even in the teeth of congressional opposition.” Starting with Harry Truman and his military actions in Korea, we have had presidents willing to go to war unilaterally without seeking prior authority from Congress. Instead, they seek authority from the UN Security Council and NATO allies, as with military initiatives by Clinton in

Somalia and Bosnia followed by Obama in

Libya. As explained by McConnell, Obama criticized Bush II for trying “to bring more and more power into the Executive Branch and not go through Congress at all,” a pattern Obama intended to reverse “when

I become president of the United States of America.” Yet once elected, he chose to act unilaterally in many areas, both domestically and abroad. McConnell cites this statement by Obama: “We can’t wait for Congress to do its job. So where they won’t act, I will.” As the book explains,

Trump acted in the same manner, stating that when someone “is the President of the

United States, the authority is total.”

In describing the allocation of constitutional power among the three branches, McConnell states that Article I vests in Congress “only the legislative powers ‘herein granted.’” That is the language of Article I, but in addition to powers expressly granted, the Framers recognized that all three branches have a host of implied powers. From the start, Congress had the implied power to create committees, hire staff to provide support, and take other actions necessary to function effectively. As the book explains, the president has an implied power to remove executive officials who are unwilling or unable to carry out their duties.

McConnell explains that President George Washington’s Neutrality Proclamation of 1793 warned Americans they would be “liable to punishment or forfeiture” if they engaged in privateering against English shipping or took sides in military actions between England and France. Some individuals were prosecuted under his proclamation. The book does not explain the role of jurors who told President Washington they would acquit whoever was brought into court. The reason: criminal law could not be made unilaterally by the president. Instead, statutory action is required. Washington got the message, stopped prosecutions, and requested authority from Congress. Statutory support was granted the following year.

In discussing the Founding Fathers, McConnell, on page 50, explains that the modern notion that presidents have “broad inherent powers to initiate military actions and are the sole organ of the nation in foreign affairs” is beyond even the vision of those who advocated strong presidential power, such as Alexander Hamilton. Quite true. The source of the sole-organ doctrine is United States v. Curtiss-Wright (1936), described on page 334 as recognizing “a broader range of legitimate delegation in the foreign affairs arena than in domestic law, though for unpersuasive reasons.” “Unpersuasive” is the correct word, but McConnell does not explain that the sole-organ doctrine in Curtiss-Wright had its source in major misconceptions by the Supreme Court that scholars quickly repudiated.

The issue in Curtiss-Wright was whether Congress could delegate to the President authority to impose an arms embargo covering a region in South America. When President Franklin D. Roosevelt implemented this policy, he announced that he was acting solely under statutory authority. Yet Justice George Sutherland, writing for the Court, not only upheld the statute but advanced a notion of presidential power that was “plenary and exclusive” in external affairs—a doctrine the Framers clearly rejected. The Constitution vests many powers of external affairs in Congress, including the power to declare war, regulate commerce with foreign nations, and make rules for the regulation of the land and naval forces, as well as the Senate’s power to ratify treaties.

After upholding the delegation, Sutherland added extraneous material (judicial dicta) to his decision. The material was not merely extraneous. It was erroneous, as scholars quickly pointed out. The year 1800 marked an election contest between President John Adams and Thomas Jefferson. In the House, those who supported Jefferson argued that Adams either be impeached or censured for turning over to England an individual charged with murder. Adams had

sent Thomas Nash, a native Irishman, to England for trial. Jeffersonians wrongly thought he was an American.

John Marshall took the floor to reject the move to impeach or censure President Adams. He explained that the Jay Treaty with England contained an extradition provision in Article 27 directing each country to deliver up to each other “all persons” charged with murder or forgery. President Adams was carrying out a treaty, his constitutional duty. During his speech, Marshall added this sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The phrase “sole organ” is ambiguous, but Marshall was clearly defending Adams for carrying out a treaty. After Marshall completed his presentation, Jeffersonians found his argument so tightly reasoned that they dropped efforts to censure or impeach Adams.

Despite the clarity of Marshall’s speech, the executive branch began to rely heavily on the erroneous dicta in Curtiss-Wright to expand presidential power. As noted by Harold Koh in his book, The National Security Constitution (1990), Justice Sutherland’s “lavish description of the president’s powers is so often quoted that it has come to be known as the ‘Curtiss-Wright, so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.”

McConnell analyzes the Supreme Court’s decision in Youngstown Co. v. Sawyer (1952), striking down President Truman’s seizure of steel mills in order to prosecute the war in Korea. He focuses on Justice Jackson’s concurrence, which advanced a “celebrated three-part framework for analyzing the scope of presidential power”: (1) acting pursuant to an express or implied statutory authority, (2) relying not on congressional authority but “a zone of twilight” in which the two branches may have concurrent authority, and (3) leaving courts to evaluate presidential initiatives that are incompatible with the expressed or implied will of Congress.

To McConnell, this approach was “deeply misleading” because it “essentially ignores Article II’s structure” in defining presidential power. The three-part analysis might be “elegant” but is “ultimately unhelpful and misleading.” No doubt, Jackson’s concurrence opens the door to much presidential abuse. He lamented the meager guidance left by the Framers: “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Here, Jackson let his gifts as a writer outrun his judicial duty for legal analysis.

As McConnell explains, Jackson’s second category implies that congressional inertia or quiescence may “enable, if not invite” presidential acts that are authorized neither by statute nor the Constitution. It “gives comfort to President Obama’s notorious claim that when Congress does not enact legislation he desires, this somehow empowers the President to act unilaterally.” Congress’s failure to pass immigration reform “did not empower President Obama to fashion his own.” Moreover, the decision by Congress to provide less money than President Trump requested for a wall on the Mexican border “did not empower President Trump to move funds from elsewhere,” which is what he did.

At the end of his opinion in Youngstown, Jackson clearly identified fundamental constitutional principles established by the Framers. With clear and explicit reasoning, he rejected the notion of a president at liberty to act unilaterally in external affairs: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” That analysis rejects Jackson’s three-part framework.

On page 223, McConnell discusses “the famous separation-of-powers case—INS v. Chadha, which invalidated the legislative veto.” A year before the Supreme Court decided that case, in 1983, I published an article in the Washington Post explaining that the legislative veto would continue regardless of what the Court decided. Starting with World War II, Congress and executive agencies understood the practical need for agencies to seek approval from designated committees in order to shift funds from one purpose to another to meet new needs. Regardless of Chadha, that process has continued. Hundreds of legislative vetoes have been exercised in the years after a decision that revealed no understanding or even recognition of this legislative-executive accommodation.

The scope of presidential power in external affairs reached the Supreme Court in Zivotofsky v. Kerry (2015), which McConnell analyzes in several pages of the book. On July 17, 2014, I filed an amicus brief with the Supreme Court on this case, pointing out three erroneous dicta in Curtiss-Wright and asking the Court to correct them. The brief is available at www.loufisher.org/docs/pip/ Zivotofsky.pdf. Although the Court chose not to analyze the errors in Curtiss-Wright, McConnell points to an article by Jack Goldsmith in the Harvard Law Review that is highly critical of Zivotofsky for expanding presidential power.

On pages 291-95, McConnell provides his evaluation of Zivotofsky. As he points out, the Court held that congressional legislation challenged in the case “interferes with the President’s unilateral and ‘exclusive’ power to recognize foreign governments and determine their territorial bounds.” To that extent, the Court echoed the sole-organ doctrine in Curtiss-Wright. As McConnell points out, the Court sustained presidential action “despite the lack of clear textual command, a history that ‘is not all on one side,’ and a dearth of directly pertinent precedent.” Under the framework set forth in his book, McConnell regards the majority opinion as “deeply flawed.” He supports the dissents by Chief Justice Roberts and Justices Alito and Scalia.

Toward the end of the book, McConnell states that if an issue reaches the Supreme Court “the judgment of the court will be final.” The record of the Supreme Court does not support that position. The process of constitutional interpretation involves all three branches, state action, and the general public. I explore that issue in my book, Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (2019). An early example is the Court upholding the constitutionality of the U.S. Bank in McCulloch v. Maryland (1819). That not did stop President Andrew Jackson in 1832 from vetoing a U.S. Bank bill in 1832, holding it unconstitutional. He said the opinion of judges “has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Congress did not override his veto.

Another example of the Supreme Court lacking the final word is the issue of regulating child labor. In 1918 the Supreme Court, divided 5-4, held that legislation passed by Congress to limit child labor through the interstate commerce clause was unconstitutional. Not accepting that as the last word, Congress passed legislation to regulate child labor through the taxing power. In 1922,