Scarinci: US Supreme Court Will Soon Review Presidential Power

President Donald Trump has issued more than 70 executive orders since taking office. While a flurry of orders is common following a change in administration, Trump has issued executive orders that encroach on the powers of Congress.

Since Trump clearly has a cooperative House of Representatives willing to act on his agenda, he still needs a few Democrat votes in the Senate to avoid a filibuster.  Trump’s overreaching executive orders are either attempting to avoid the Senate or he is deliberately pushing the limits of executive power.

Presidential Power Under the U.S. Constitution

For an executive order to be legal, its authority must stem either from an act of Congress or from the Constitution itself. As described by the Congressional Research Service, “although the U.S. Constitution does not address executive orders and no statute grants the President the general power to issue them, authority to issue such orders is accepted as an inherent aspect of presidential power.”

The power of the President is set forth in the U.S. Constitution. Under Article II, section 1, “The executive power shall be vested in a president of the United States of America.” Article II, section 3 further states that, “The President shall take care that the laws be faithfully executed…” While neither provision expressly authorizes the president to “go it alone,” presidents have issued executive orders since the earliest days of our country.

Executive Orders can also derive their authority from some form of congressional authorization for the President to act. Generally, Congress may either actively delegate such power before the President issues the order or ratify an already-issued executive order by solidifying it in federal law. Of course, Congress can also pass legislation to undo an executive action. However, any proposed measure would be subject to presidential veto power.

Legal Challenges to Executive Orders

The Supreme Court can also declare an executive order unconstitutional as it would any other law. In Youngstown Sheet and Tube Co. v. Sawyer, the Court famously vacated an executive order by President Harry Truman directing the Secretary of Commerce to seize and operate most of the country’s steel mills after finding that it was not authorized by the Constitution or laws of the United States.

According to the majority in Youngstown, the authority to take possession of the steel mills could not be implied from the aggregate of President Truman’s powers under Article II of the Constitution. Rather, the power at issue was the lawmaking power, which the Constitution vests in the Congress alone.

“The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” the majority held.

Justice Robert Jackson’s concurring opinion in Youngstown established a three-part test for analyzing conflicts between presidential and congressional powers, which has been applied to legal challenges involving executive orders. Justice Jackson delineated three categories of executive action:

1. the President’s powers are at their maximum when acting pursuant to a direct or implied authorization from Congress.
2. there is a middle ground or “zone of twilight in which [the President] and Congress may have concurrent authority, or in which distribution is uncertain”; and
3. Presidential authority is at its “lowest ebb” when a President acts against the expressed wishes of Congress.

According to Jackson, examination of presidential action under the third category deserved more scrutiny because for the president to exercise such “conclusive and preclusive” power would endanger “the equilibrium established by our constitutional system.”

Trump is currently facing several lawsuits alleging that his executive orders encroach on the powers of Congress. Notably, the executive order seeking to end birthright citizenship for children of non-citizens has been blocked by a federal judge in Maryland, with eight additional cases against the administration pending in other courts.

A federal judge also halted the order freezing federal grants, ruling that Trump lacked the authority to withhold congressionally appropriated funds. Lawsuits challenging the closure of the U.S. Agency for International Development (USAID) are also ongoing, with at least one judge holding that the administration may have exceeded its executive authority in unilaterally shuttering a congressionally authorized agency.

Several of these suits will likely find their way to the U.S. Supreme Court. The justices will then have the difficult task of determining where Trump’s actions fall under the Youngstown framework, with many arguably falling in the so-called “twilight zone.”