Originally published by The Regulatory Review
President Donald J. Trump has engaged in direct exercises of presidential power to a much greater extent than any past President. Prominent examples include his executive order declaring that no one born after February 19 can be a birthright citizen, his determination that members of a Venezuelan criminal organization have attempted to invade the United States, his orders barring certain lawyers he dislikes from entering government buildings, his revocation of the security clearances of certain government officials, his cancellation of security details for several other former government officials, and his order imposing massive tariffs on goods imported from nearly 100 countries.
Traditionally, Presidents have ordered agencies to act, and agencies have complied. That procedure created a situation in which presidential directives were unreviewable, and courts reviewed agency actions under the standards in the Administrative Procedure Act (APA).
The President is not an agency, so the APA does not apply to presidential actions. How will—or should—courts react to direct presidential commands? Chapters of the American Constitution Society and The Federalist Society at The George Washington University Law School asked me to address this question, so I decided that I should share my thoughts more broadly.
The question is important. The Brennan Center for Justice at New York University School of Law has identified over 100 statutes that confer emergency powers on the President. President Trump’s pattern of behavior could become the new normal for all Presidents if it becomes apparent that a President has more power to take discretionary actions directly than through agencies. What is the scope of the President’s power to act directly? I have many questions that are derivative of that question, but I have few answers.
There is a dearth of directly applicable law because Presidents have rarely taken actions like those that have become the norm during the first days of the Trump Administration. The most directly relevant case is Youngstown Sheet & Tube v. Sawyer, in which the Supreme Court held that President Harry S. Truman lacked the power to seize the nation’s steel mills and use the military to operate them when a steelworkers’ strike threatened the safety and efficacy of U.S. forces in Korea. Even in that case, President Truman took the action through the U.S. Department of Commerce—although the Court addressed the legality of the action as if it had come directly from the President.
The Supreme Court has ignored the majority and dissenting opinions in Youngstown, but it has often cited Justice Robert H. Jackson’s concurring opinion. Justice Jackson placed presidential exercises of power in three categories. First, when the President acts under a grant of power from the U.S. Congress, his power is at its greatest. Second, when the President acts in a legislative void, his power is uncertain. Third, when the President acts contrary to the will of Congress, his power is at its lowest ebb.
Justice Jackson concluded that President Truman’s action fell in the third category. He argued that Congress opposed the action because it had considered enacting legislation that would have conferred power on the President to seize private property and to operate it if a strike threatened national security but had declined to enact such a statute. As Edward T. Swaine has explained, Justice Jackson took a dubious step when he used congressional failure to enact legislation as evidence that Congress opposes the actions that the legislation would have authorized. Congress regularly fails to enact legislation that either authorizes or forbids executive branch actions of various types for a wide variety of reasons. It is dangerous to draw inferences from congressional inaction.
Henry P. Monaghan has argued that the President’s power to act in a legislative void is at its greatest when the President acts to protect the country, its citizens, or its property. The limited relevant case law supports Monaghan’s argument, but it leaves us with serious questions. Given the extreme weakness of the basis for the inference that Congress opposed President Truman’s action, why did Justice Jackson not place it in the second category and uphold it as an action that protected the country and military personnel in Korea? How will courts make categorical decisions under Justice Jackson’s suggested framework with respect to each of the widely varying actions that President Trump has taken? President Trump routinely claims to be acting to protect the nation from a national emergency of some kind.
The list of questions grows from there. Does the nondelegation doctrine—which precludes delegations of standardless power from Congress to agencies—apply to statutes that authorize the President to act? If so, most of the statutes that confer power on the President in such broad language would seem to be excellent candidates for a holding that they are invalid as standardless delegations of power.
Does the major questions doctrine—which requires Congress to speak clearly before an agency can regulate on matters of significant economic or political matters—apply to presidential actions? If so, many of President Trump’s actions should be held to be invalid under the major questions doctrine. His actions have major economic and political effects—which the Court have used to decide that an action is so major that the executive branch cannot take it without explicit authorization from Congress.
The four cases in which a majority of Supreme Court Justices recently applied a robust version of the major questions doctrine as the basis to invalidate agency actions are a good place to start in developing more questions about direct exercises of presidential power. Each of the four agency actions that the Court invalidated had their roots in the oval office. Should it matter whether a President takes an action directly or orders an agency to take it?
I have long been puzzled by the major questions doctrine as the Court applied it in each of the four cases. It would have been easy for the Court to use traditional tools of statutory construction to invalidate each of the four actions. Why did the Court choose to create and apply a new doctrine to achieve that result?
That leads to another important question. How much deference will—or should—the Court confer on the President when he takes a direct action? Will that depend on the category in which the Court places the action using Justice Jackson’s three-category approach? If so, how will the Court apply the three-category approach?
I end with the most important question. How will the Court resolve the tension between the expansive approach that it has taken toward presidential power in its cases involving the presidential removal of agency heads and the stingy approach that it has taken toward presidential power in cases such as Loper Bright Enterprises v. Raimondo—which overturned the long-standing Chevron doctrine requiring courts to defer to reasonable agency interpretations of statutes—and the four cases in which it applied the major questions doctrine? I hope that readers of this essay will be able to do a better job of answering these questions than I have been able to do so far.