Over time, caselaw on Presidential powers has drifted significantly from the text. Sometimes it even contradicts the expressed text. Extraconstitutional powers are reserved powers, powers not expressed or plainly and specifically implied in the Constitution. Amendment X limits reserved powers to the people or the states.
We vested powers not arbitrarily but after twelve years of consideration and debate, including six years of trying to make our first effort, the Articles of Confederation, work. Separation of powers, for one, assumes powers will stay where we placed them in the Constitution. Only the people may remove powers and vest them in someone else.
SCOTUS recently upheld the people’s power to do just that. In Arizona State Legislature vs Arizona Independent Redistricting Commission, the people of Arizona had passed a ballot initiative to remove districting from their state legislature and vest that power in a commission. The legislature sued, and the people won. (The public may have given the foxes the keys to the henhouse in that case, but the confirmation is still important.)
Neither Congress nor state legislatures (nor treaties, nor international law) can transfer to anyone else the rights or powers the people vest by the Constitution. That takes Article V amendment. The nondelegation doctrine says officers can delegate "sub but not re": under but not away from themselves, because to delegate away is to revest, and to vest a right or power is to ordain and establish government. The executive branch is away from Congress (compare a Congressional commission). But the courts have gradually allowed it.
It’s called by several names:
But the proper term for it is redelegation (or revestiture). And it’s unconstitutional.
The mess that currently afflicts the federal government mainly results from caselaw drift - a sequence of decisions that increasingly deviate from the Constitution. The opinion in the very first decision on redelegation, Wayman v Southard, 23 US 1 (1825), admits that convenience, one of law's main challengers, affects the ruling. (That error continues in Field v Clark, 143 US 649 (1892), JWHampton Jr & Co v United States, 276 US 394 (1928), Mistretta v United States, 488 US 361 (1989).) The famous concurring opinion in Youngstown Sheet and Tube Co. et al v Sawyer states flatly that necessity requires extraconstitutional powers. But Judges and Justices swear one oath: to support the Constitution. They can't uphold statute, precedent, convenience or necessity above it. (Implying powers is dangerous and shouldn't be used broadly or for any of these reasons. If necessity appears to conflict with the Constitution, the courts must uphold the text and appeal to the people to amend it.) Justice Scalia's dissent in Mistretta begins to reconsider convenience, calling it a potential source of judicial overreach. He was understating the problem.
Referring to Congress and the President together as "the political branches" can confuse their distinct roles. The Constitution expressly separates them into Articles I and II. The President isn't part of Congress and may not do what the text delegates to Congress. Laws and executive orders are not the same.
Several extraconstitutional justifications have been used to give Presidents Congressional powers. None stand up to the combined expressed force of Amendments IX and X, Article V and the Necessary and Proper clause. These four of the Constitution’s firmest clauses solidly reject authority emerging from the office itself, or from statute. And the Preamble supports them – the people only consent to United States authority that we ourselves vest in the text.
But in 1946, in the Administrative Procedure Act, Congress redelegated their legislative power to the President if it took the form of an executive act making executive policy. Then they insisted that discussing such an executive act was really discussing this law, at a degree of separation. How did this happen?
The Preamble, Article VI, and Amendments IX and X cover the hierarchy of legal powers:
1. the people’s right and power to establish a Constitution
2. the Constitution, treaties and federal statutes,
and any inalienable rights or powers not mentioned in the Constitution
3. state constitutions and statutes
5. anything else, including executive acts
Presidents issue three kinds of acts, in declining order of authority:
Every President but William Henry Harrison, who died after a month in office, has issued at least one executive order. Even Washington issued eight. But they weren't like the travel ban.
[4 just asked the people or government officers to comply with laws, treaties or Constitutional clauses. 1 made Thanksgiving a holiday. He issued emergency orders when Congress wasn't in session to pass them as laws; when they returned they did. And Congress asked Washington to oversee the survey for the District of Columbia's final borders (he was a surveyor). He issued the results as an executive order but it didn't affect anyone's rights. Nobody lived there yet. It was a swamp!]
We have asserted limits. When Bill Clinton tried to redelegate to himself by adding a fourth kind of executive act, a line-item veto, Congress and then the Court refused. George W. Bush achieved this with signing statements, but a leery public questioned their power to negate parts of a law.
What has to be a law? Read as a whole document (the whole-text canon), the Constitution states that the only acts of governance powerful enough to impact any person’s
have been passed by Congress or a state legislature and signed by an executive, and are subject to judicial review.
"No state shall make or enforce any law
which shall abridge the privileges or immunities
of citizens of the United States;..."
Amendment XIV, section 1
By prohibiting abridgment by state or US law (states also enforce US laws), Amendment XIV, section 1 expresses that either a state or US law could potentially have enough legal force to endanger US-granted citizenship privileges or immunities. Presidential acts aren't mentioned, which means no act by the President could potentially have enough legal force to endanger a US citizenship privilege or immunity. The omission distinguishes executive acts from state or federal laws.
To argue the Establishment clause against an executive order ignores the clause's plain wording:
"Congress shall make no law respecting an establishment of religion..."
The First Amendment, by naming only United States law, expresses that not even state law could potentially have enough legal force to endanger a personhood right or power. Executive acts aren't mentioned either.The omission distinguishes both executive acts and state laws from federal laws: because Article VI gives federal law the same legal force as the Constitution we have to protect even our inalienable rights and powers against it (these are inborn but if they can't be enforced they're useless). [Why did we give Congress' laws more power than states'? Laws affecting inalienable rights are too serious to be made without every American having representation in their making.]
These clauses show that the nature and effect of an act of governance determines whether it must be a law or can be another act. Neither labeling a law by some other name nor passing it by some other procedure changes its nature or effect (although an invalidly passed law is invalid).
“The Congress shall … make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and
all other powers vested by this Constitution in the government of the United States,
or in any department or officer thereof.”
Article I, section 8
The Necessary and Proper clause refers to laws governing the exercise of powers. And it vests only Congress with making them, not the President or judiciary.
"All legislative Powers herein granted shall be vested
in a Congress of the United States, ..."
Article I, section 1
Compare the Legislative Powers clause. They're not the same. And the Constitution doesn't repeat itself (the surplusage canon). Rules and policies (the Constitution calls both rules) establish procedures and administrative duties for government officers. In a strict reading of the Necessary and Proper clause, even vacation schedules for the executive and judiciary branches must be made by US law. We can stand on that but might be guilty of cruelty to Congress. Washington only had a couple of principal officers but this soon proved insufficient.
“[H]e may require the opinion, in writing,
of the principal officer in each of the executive departments,
upon any subject related to the duties of their respective offices; …”
Article II, section 2
Article II, section 2 expects the President to consult with the principal officers of executive departments about their work. The Opinion clause suggests something fairly egalitarian, appropriate to a democratic republic. This is supported by Congress' power to
"...by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Article II, section 2
The President, the judiciary and the heads of departments might have equal power to appoint their own minor officers, so the President's power over the departments isn't absolute. And executive orders and department heads are redundant. If the President could govern the departments by orders, why have principal officers? Government by decree is royalist in nature, the concept and form of government we fought the Revolution to leave behind.
Since the text mentions the department heads twice and lets Congress vest the power of making minor appointments in them, Congress allowed them discretion – power to make some internal rules and policies. Of course, even if Congress can redelegate these it directly violates the text to redelegate their own power to legislate anything that impacts rights, powers, privileges or immunities. Those rules and policies have to be laws of execution passed by Congress, signed by the President and subject to judicial review.
“He shall take care that the laws be faithfully executed …”
Article II, section 3
But Presidents needed to make sure the executive departments didn’t violate the laws, and oversight soon became control. Congress still supplied as law any internal rules or policies affecting the public. But the control Congress retained gradually degraded. Today this is little more than oversight. Congress would worsen the problem in 1929 by freezing the House at 435, limiting the work they could do, violating Article I, section 2’s Apportionment clause.
The use of any power, right, privilege or immunity the people delegate in the Constitution is governed by it. In order to govern the use of these, their use against any person attaches the text's personhood rights, powers, privileges and immunities. (Why? See Extraconstitutional Power: the Cases.)
In the mid-twentieth century the civil rights movement and other developments increased understanding of inalienable rights and civil liberties like Amendment V’s Due Process clause. Cases began to prove limits to each of the extraconstitutional powers, but old statutes and precedents remain. Over the last 30 years, a philosophy called legal pragmatism has weakened the rule of law. Extraconstitutional powers have expanded and SCOTUS has yet to address this head on.
Either Congress or the Supreme Court can end redelegation, full sovereignty and plenary power once and for all. Congress will resist, of course, and the Court may as well. These violations are longstanding, have some precedent behind them, and are popular with the other branches. Some, like sovereign immunity, benefit state officers so they, too, may be happy with minimal change, fighting every new order on its surface issues instead. This is expensive, time-consuming and unnecessary, as well as dangerous!
We must press our state attorneys general to protect not just our rights but our powers. We must beg the courts to address them, and demand that our state attorneys general amend the complaint to include them.
They are being shortsighted. If not addressed in this case,
President Trump’s stream of executive orders promise more violations. Extraconstitutional powers have reached the point of crisis.
But we can’t let the Court declare the case unreviewable. Naturally these powers would creep until executive orders covered everything Congress used to do, without being subject to challenge.
An amicus brief wouldn't affect the complaint, although judges do read them. It would cost money, but a coalition of organizations could split the cost.
If SCOTUS won’t address it now or if we can’t convince our sitting state attorneys general to support us, they can also establish a temporary middle ground. The following set of standards for action by Presidents can be used temporarily as a test. They’re not a substitute for ending extraconstitutional powers but an interim step.
Unilateral Presidential action must meet these standards:
1. It complies with, without amending or affecting the application, execution or enforcement of: the Constitution, United States and state law, and treaties. It does not impact the rights, powers, privileges or immunities of any person or grant any right, power, privilege or immunity.
2. It is subject to judicial review.
3. It is tailored as narrowly as possible.
4. It is limited to the ten unilateral Presidential powers (Article II enumerates these in greater detail):
call Congress into emergency session or adjourn them
temporarily fill government vacancies that occur while Congress isn't in session
nominate & commission appointed officers
sign or veto bills
recommend measures to Congress for their consideration
give State of the Union addresses
require the opinion of the principal officers in the executive departments
grant reprieves & pardons
once Congress has declared war, command the military and militias
send and receive ambassadors
5. Exception to #4: during a temporary state of national emergency after the President calls Congress into extraordinary session, it resolves an emergency or stabilizes one until Congress can meet, by executing a law passed by Congress. Any action issued under the exception expires when Congress meets or when the emergency no longer exists, whichever comes first.
Note on #5: While there is Preambular justification for safeguarding unity, justice, domestic peace, defense, the general welfare, and liberty against emergencies when Congress is not in session, the text doesn't expressly assign this power to the President. Since only the Executive branch sits year-round the Court may find it an implied power, as long as it proceeds from and is limited by one of the expressed unilateral powers (calling Congress into extraordinary session). #5 must still comply with #'s 1-3, and must be temporary. Letting the President unilaterally make policy with the force of law contradicts the text.
Defying the Constitution,
Presidents today issue executive orders with the legal force of laws & fight undeclared wars.
Washington thinks they've found a way to get around the difficult and potentially unpopular procedure of passing laws.
And if nobody stops them they may get away with it.
How do they do it?
By extraconstitutional powers:
redelegation, plenary authority, and sovereignty.
Congress redelegates its powers to Presidents.
Extraconstitutional power is unconstitutional power.
These 3 powers have combined to create a second legislative path
that's nowhere in the Constitution.
The people never delegated these powers or this result.
In the "travel ban" cases, both the Fourth and Ninth Circuits' rulings
subject the President to the immigration authority
the Constitution assigns solely to Congress.
[Because they agreed with some arguments that were on this page,
those arguments have been moved to a new page,
This page covers how extraconstitutional powers started,
and how to end them.]
The President is trying to remove those rulings
because they would begin reducing executive-order creep
back towards the limits the Constitution sets.
SCOTUS has asked the parties to send briefs
by October 5 on whether these rulings should be mooted or vacated.
We have a rare opportunity to shut down three of the main sources of government dysfunction, by telling the respondents to use EVERY ARGUMENT at their disposal (see "Truth Walks Into a Courtroom..." on the page Extraconstitutional Power: the Cases)!
Image: gay2016; pixabay
Plenary power and sovereignty were hot topics of public debate in the latter nineteenth century. This was the beginning of America’s age of empire, which would last until Alaska and Hawaii were admitted as states.
Plenary authority is unlimited and unreviewable power. And it’s unconstitutional.
Because the two powers overlap, plenary powers are often mistakenly called sovereign powers, such as:
Plenary power goes even further, claiming unlimited as well as unreviewable power. Some executive forms are called
The error is claiming that the Framers intended to delegate to the government the powers of a monarch, which they did not.
We the people identify ourselves as the authors of the Constitution. Saying "the Framers" or "the Founders" sometimes obscures this. Since we the people empower the government, it can’t have unlimited or unreviewable power over us. The only unreviewable authority is our instrument the Constitution - and in Article V we reserved the right and power to amend even it.
Article IV, section 4 guarantees to every state a republican form of government, not a monarchy. Amendments IX and X prevent requiring the Constitution to specifically exclude United States government rights or powers: instead, we the people reserve whatever is not mentioned, or delegate it to the states.
Article VI specifies that every officer including the President is bound by the Constitution, federal law, and treaties. And the text limits powers, showing its authority over officers. For example, Article II, section 1 binds the President to election and to a four-year term, and Amendment XXII limits the number of terms.
Although we limited the President’s role to execution, having a face for the United States proved popular and the concept of the President as leader grew through the years. The people questioned the President’s authority less and less often.
United States vs Curtis B Wright Export Company in 1936 found that powers delegated in the Constitution are inherent sovereign powers. This was awesome new power, entirely unauthorized by the Constitution. Inherent powers are not only plenary, they can reduce the public’s inalienable right and power to change our government. The Presidency gained the most by this upgrade. Remember, executive acts impacting a person's rights, powers, privileges or immunities under any circumstances have no support in the text.
1953’s Youngstown Sheet and Tube Co et al v Sawyer is famous for restraining a President’s creeping powers. In fact, it greatly expanded them. President Truman was barred from using war powers to seize a factory, which was private property, but a concurring opinion, accepting extraconstitutional powers as necessary (and within SCOTUS' power to allow), allowed executive orders as much force as law if the President acts in accordance with the first level of a three-level scale. Even below that, while it loses power it may still be allowed,
directly contradicting the text.
The Framers were thoroughly familiar with both war and economic crisis. They limited the President's powers and the people have never amended on this. Congress’ desire to avoid offending voters (or, today, more often donors) is not a textual grant of power. And the Supreme Court has no power to authorize extraconstitutional power.
Article III, Section 2:
"The judicial Power shall extend to all Cases, in Law or Equity,
arising under this Constitution [...]"
The judiciary's power to interpret the Constitution is limited by its jurisdiction: to cases arising under the Constitution. To a judge in the United States, whose authority is vested by the Constitution itself, and who has vowed to support the Constitution as the supreme law of the land, contradicting the expressed text is not a matter of interpretation. It's not allowed.
Article VI: "[...J]udicial Officers […] shall be bound by Oath or Affirmation,
to support this Constitution;"
Every decision affirms something. To defer is to affirm. To avoid is to defer. Article VI imposes an obligation to support the Constitution. So does Article III - all means all - but the command in VI is explicit.
Amendment X expressly prohibits Congress' granting any federal power by statute, or the President's taking any extraconstitutional power. And Article II lists the unilateral executive powers in detail, leaving nothing to guesswork.
The text covers large topics in multiple clauses. Just finding one clause that can appear to support what the government wants to do then simply not addressing related clauses that would disagree should be rejected by the courts.
Implied powers are an important example. "Why do we have a Supreme Court?" is answered by the Preamble: if the people couldn't review statutes for constitutionality we'd have a hard time enforcing the Constitution to establish justice. Judicial review isn't expressed but we need SCOTUS mainly because we need to enforce the text somehow. Letting the President make "policies" (equivalent to laws) necessary to carry out laws fails the test for implication because that power is already expressly assigned to Congress, and one excuse given - "all foreign policy is assigned to POTUS" - contradicts the text, which assigns many foreign policy powers to Congress. The courts must correct false statements about the text.
The courts may not allow any plenary powers. Congress claims plenary power to make rules, a power usually exercised less publicly. The courts wrongly accept this. Amendment I expresses that no act of governance we authorize in the Constitution is exempt from compliance with it, and no office created by it is immune against it.The text often constrains Congress (for example, they may not refuse to hear a Presidential nominee) and their rules are subject to the supreme law. The people must prosecute Constitutional violations in Article I, section 5 rulemaking.
Is plenary power constitutional?
How can it be?
Redelegation, full sovereignty and plenary power have combined to create a second legislative path that's nowhere in the Constitution. The people never delegated these powers or this result. They're too destructive to continue. Let's end them today!
The enumeration in the Constitution, of certain rights,
shall not be construed
to deny or disparage others
retained by the people.
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States,
are reserved to the States respectively,
or to the people.
What does the Constitution allow the President to do by executive order?
*The unilateral Presidential powers can only be exercised by the President so they may not be shared powers. Making treaties is a long process, shared with Congress. Nominations, by contrast, get an up-or-down vote. And the President shares executing the laws with theexecutive departments.
These powers fall into groups:
Sovereignty is the right and power to act on the people’s behalf.
The people are sovereign in the United States. Rights and powers we delegate to our government are quasi-sovereign. We built in three main kinds of legal accountability to the people: of all government officers, by election; of laws, policies, rules, and the ways they're used, by our resort to the courts or to Congress.
Judicial review isn’t a right or power exercised by the judiciary. Judges don’t file cases or appeal decisions. The right to petition is the people’s (Amendment I). And by the act of ordaining and establishing and the act of ratifying our expressed will, the Constitution, we reserved power to review any act of governance for compliance.
Congress isn’t the only branch guilty of redelegation. The courts redelegate powers by abdicating their vital check on the other branches. It’s often easier to see sovereignty in action by what the judiciary fails to do than by what the legislature or executive does.
Full sovereignty is the removal of legal accontability: an unchecked power to act on the people’s behalf versus the people, or without concern for the people.
Forms of it are called:
These are royal powers. They’re plenary powers. They're steadily increasing. And they’re unconstitutional.
“Congress shall make no law…
abridging…the right of the people…
to petition the government for a redress of grievances.”
The Constitution forbids the government to immunize any acts, offices or officers against the people.
Proponents of full sovereignty claim we must keep the courts out of subject areas where an independent voice could reduce strong unitary government. But the Constitution is designed to prevent strong unitary (unilateral) government. The branches are supposed to check and balance one another.
With the exceptions of impeachments and pardons, nowhere does the text free any subject matter from review for compliance. Abdication of the judicial role allows violations to go unaddressed, sometimes for generations.
Even Congress’ internal rules, which Article I, section 5 authorizes Congress alone to determine, are subject to the Constitution that gives legal force to both the rules and the body that enacts them. If they weren’t, Congress could pass a rule that members would serve for life and the people couldn’t stop them.
Article I, section 6 frees Congressional speech and debate from review anywhere but in Congress. This doesn’t make it immune from review. It just requires review in Congress itself (we still need a procedure for this). And the Speech or Debate clause doesn’t apply to laws or other acts of governance. They’re not speech but acts.
State and federal offices and officers would eventually claim sovereign immunity – a government right to immunity in cases filed by the people. This is an unconstitutional privilege, but it crept up gradually. In 1795 Amendment XI granted states full sovereignty in suits by foreign people or citizens of other states. These suits could no longer be filed in the Supreme Court but in state courts. The amendment couldn’t and didn’t try to grant states sovereignty over their own people. But when Congress created federal courts these agreed to a general rule of deferring cases involving both state and federal laws, policies or rules to state courts.
When we survived the Civil War intact and with our founding principles reaffirmed by the end of slavery, the western world had to admit a constitutional democratic republic could work. The giddy period that followed almost obliterated those founding principles as the government began behaving in ways more and more like the ones we’d left behind with English rule.
Soon sovereignty, the plenary power of kings, began to creep up past quasi- sovereignty, the reviewable power of government in a constitutional democratic republic.
Presidents began to claim full sovereign power in foreign affairs. They were dealing with kings and dictators. Wasn’t it good for America’s position that a President be their equal?
As the executive departments grew Congress made administrative courts to govern them, and federal and state courts deferred to them. The public retained the right to appeal their decisions to a federal court but only after exhausting administrative and state systems. This was prohibitively expensive for most Americans, and our control over executive policy faded.
Congress doesn't require itself to introduce measures submitted by constituents, a privilege that violates the Petition clause (discussed in The Public Grievance Question).
And as civil suits became common, courts began to allow various kinds of immunity to save public money - and to save government officers embarrassment. The public's ability to stop specific abuses of government rights & powers faded, leaving only electoral accountability, which doesn't address specifics.
Executive-order creep is dangerous.
Help end it!
Consider this: the Electoral College.
Why would we the people give up the power to directly elect anyone who would make laws we'd have to obey?
We only allow Presidents to execute laws made by Congress.
If it affects the public's rights, powers, privileges or immunities, it's a law and must be made by at least one popularly elected body (the House was always popularly elected).
Regulations by executive agencies have to go through Congress as if they were bills. The Constitution doesn't exempt the President, so (except for the ten unilateral powers listed) executive acts must be passed by Congress the same way.
It's high time we started enforcing this!
Are we supposed to put up with Congress sneaking
whatever they want over to the White House
to be issued as an executive order?
When executive orders violate rights should we be forced to fight them one by one, each on its surface issues?
And how can we keep these unlawful powers
from creeping even more?
With these executive orders, President Trump has handed us a rare opportunity to strike at the roots of
Tell the lead counsel in each case to use EVERY argument at their disposal, not just some.
We can make this happen!
Neal Kumar Katyal, at email@example.com
is the lead counsel for the State of Hawaii.
Omar Cassim Jadwat, at firstname.lastname@example.org
is the lead counsel for IRAP.
Follow this model:
“As a United States resident I want you to use every argument at your disposal to prevent mootness or vacatur in the joined cases of Trump v Hawaii and Trump v IRAP."