Invoking Inherent Powers: A Primer

Abstract

This special issue was organized to give scholars of different disciplines and persuasions an opportunity to analyze the nature and scope of the president’s power to exercise inherent authorities. What is the origin and legitimacy of this type of authority? Is it drawn solely from Article II of the Constitution or also located outside as an extraconstitutional power? What checks from the other branches operate against it? How does the assertion and exercise of this power by President George W. Bush compare to and differ from those of his predecessors? How compatible is presidential inherent power with the U.S. system of republican government and constitutional limits? Across a broad front, the presidency of George W. Bush claims inherent powers to create military commissions and determine their rules and procedures; designate U.S. citizens as “enemy combatants” and hold them indefinitely without being charged, given counsel, or ever tried; engage in “extraordinary rendition” to take a suspect from the United States to another country for interrogation and possible torture; and authorize the National Security Agency to listen to phone conversations between the United States and a foreign country involving suspected terrorists. This is not the first time that an American president has invoked inherent powers under Article II and the Commander-in-Chief Clause. Other precedents exist. Some are poorly understood and taken out of context to promote a scope of executive power that was never originally intended. In other cases, there are clear examples of presidents who invoked inherent, extraconstitutional, and exclusive power. Still, at no time in America’s history have inherent powers been claimed with as much frequency and breadth as the presidency of George W. Bush. How much power fits under the umbrella of “inherent”? We are familiar with express and implied powers used by presidents to discharge their constitutional duties. Express powers are clearly stated in the text of the Constitution; implied powers are those Louis Fisher is a specialist in constitutional law with the Law Library of the Library of Congress. He has published numerous works on the presidency, national security, war powers, and other constitutional issues. AUTHOR’S NOTE: The views expressed here are my own.