Inherent Powers

Inherent powers are those powers held by the President that are not explicitly mentioned in the United States Constitution. Though these powers are not specified, they are deemed necessary in some situations in order for the President to effectively fulfill his or her responsibilities. Some people have expressed concern that the broadly interpreted inherent powers held by the U.S. President are too open-ended, allowing the Commander in Chief to operate without check-and-balance by Congress.

The President and congress have exercised inherent powers throughout history, mainly in the event of national emergencies, when quick action is required. To explore this concept, consider the following inherent powers definition.

Definition of Inherent Powers

Noun

1. Powers held by the U.S. President which are not specified in the Constitution, but which are needed to efficiently perform the duties of the office.

Origin

Sept. 17, 1787  Signing of the U.S. Constitution

What are Inherent Powers

The Constitution lists specific powers held by the federal governments, and states that all other powers are to be reserved for the individual states. The architects of the U.S. Constitution were wise enough to acknowledge that it was impossible for them to anticipate and list every power that would be needed by the newly formed federal government, especially as time went on, and the country’s needs changed. Article II, Section 1 of the Constitution provides:

“The executive Power shall be vested in a President of the United States of America.”

And in Section 3:

“[H]e shall take Care that the Laws be faithfully executed”

This is where inherent powers come in, as there are many things not mentioned in the Constitution, which are vital to ensuring that the President is able to carry out his duties.

Inherent Powers of the President

While the Constitution does not cover much about the actual job duties of the President of the United States, it does specify that the President is to make sure laws are “faithfully executed.” This means the President has a duty to all Constitutionally valid acts made by Congress, regardless of how the presidential administration feels about them. This also means the President has the authority to expand his fundamental powers granted by the Constitution for the express purpose of accomplishing his specified duties.

Executive Orders

While the creation of law is the province of Congress, the President, as head of the executive branch, has the authority to issue Executive Orders. Such orders have the force and effect of law, if they are made in accordance with a legislative power, or an act of Congress. Executive Orders may be issued only in certain circumstances, however, which include addressing issues within the executive branch itself. For instance, an executive order may be used to raise the wages of government workers above federal minimum wage. Other examples of Executive Orders made in recent years include:

• Establishment of a minimum wage for federal contractors (Executive Order 13658)
• Expanding Eligibility for the Defense Meritorious Service Medal (Executive Order 13666)
• Revising the List of Quarantinable Communicable Diseases (Executive Order 13674)

As examples of inherent powers enacted through the issuance of an executive order, consider the question of whether the President has the authority to raise the federal minimum wage for government workers. The Constitution specifically states that only Congress has the authority to regulate minimum wage.

The President, however, is in charge of the executive branch, and has the authority to determine how it operates, much like an employer decides employment and operational issues. Because of this, President Obama signed Executive Order number 13658, raising minimum wage for employees in the executive branch to $10.10 per hour, from the miniscule $7.25 per hour they were receiving.

Reasons a President Can Issue Executive Orders

Exercising inherent powers can be tricky, as they are basically assumptions of authority needed to get the job done. That leaves a lot of room for people to object. Generally, the President can issue executive orders for the following three reasons:

1. To enforce statutes and laws already enacted by Congress
2. To enforce the Constitution, or treaties already made
3. To modify how federal agencies operate, or to establish new rules of operation

All executive orders signed by the President must be published in the Federal Register, a website that publishes federal documents, including rules and regulations.

Inherent powers give the President the authority to determine how strictly a federal law is enforced. This follows the observation of President Lincoln that “the best way to get a bad law repealed is to enforce it strictly.” By contrast, many presidential administrations have also held to the belief that the best way to ensure a bad or unpopular law on the books is to allow it to be enforced piecemeal.

For example, the President can decide, in the face of a robust drive to deport illegal immigrants, not to deport children of illegal immigrant parents. Although immigration laws specify immigration issues, by signing an executive order, the President can choose not to enforce certain points of the law.

Other Types of Powers Granted by the Constitution

While inherent powers are not specifically listed in the Constitution, the document does specifically mention several other types of power granted to both the President and Congress of the United States. Specific powers listed in Article I, Section 8 amount to a long list of everyday tasks assigned to Congress, and are known as “enumerated powers.”

Reserved Powers

The purpose of listing powers in the Constitution was to ensure that the people would be able to government themselves, within their individual states. To that end, the authority given to Congress and the President are limited, with all other powers reserved for the individual states to decide. Reserved powers begin with the power to pass and uphold laws in each state, and include all powers not specifically granted to Congress and the President.

Concurrent Powers

Concurrent powers are those powers shared and exercised by both federal and individual state governments. These are powers necessary to keep deter crime, citizens safe, and support the economy, and include the power to levy taxes, the right to borrow and spend money for the public good, the power to establish a system of elections, the right to establish and maintain law enforcement, and the right to establish and main a court system.

Denied Powers

The drafters of the Constitution were careful to deny powers to both the federal and state governments which could allow them to abuse their power. Article I, Section 9 of the Constitution lists the things that no level of government may do. Examples of denied powers include:

• Levying of taxes on exports
• Making of treaties with foreign governments
• Making or issuing money
• Granting titles of nobility

Inherent Powers Examples

Amelia is hired as the executive chef for a political fundraising dinner, for which attendees will pay $5,000 per seat to attend. While the event organizer has given Amelia a brief outline of what types of food should be served, Amelia must shoulder all of the tasks required to put on an excellent feast. Amelia’s decisions include creating a menu, determining what ingredients must be purchased and prepared, and how many chefs, assistants, and servers should be hired.

If Amelia had to submit every one of these decisions to a committee for approval, her job would be nearly impossible, and it certainly could not be accomplished in time. In this situation, Amelia as inherent powers to plan, make decisions relative to the plan, and approve of all the details necessary to complete her assignment as executive chef.

Inherent powers of the U.S. President are similar to this situation, in that they are simply powers needed to get the job done.

The Seizure of Steel Plants by Inherent Powers

In 1950, the United States became involved in the Korean War. President Truman sent American troops to South Korea after the country was invaded by the North Korean military. The President did not ask for a Congressional declaration of war, though there was a resolution made by the United Nations. Acting on his interpretation of inherent powers, President Truman issued an executive order for the military action, failing to impose price controls normally associated in war. Instead, Truman attempted to suppress inflationary prices and wages.

These efforts failed spectacularly when the United Steel Workers of America went on strike. Unable to reach a resolution, and facing a serious slowdown of defense contractors for the lack of supplies, Truman opted to seize their plants. The plants were kept running by the original operating management, under federal direction.

In not seeking Congressional approval for the military action, Truman used his inherent powers to seize the steel production plants under the Defense Product Act. The steel industry however, disagreed. After announcing the seizure over television and radio broadcasts, the steel companies immediately reacted and filed pleadings with the court.

A hearing was scheduled for the day after the announcement, and Judge Alexander Holtzoff heard the arguments. He quickly dismissed the request by the steel companies for a restraining order against the federal government.

The court then heard arguments from the steel companies on why a preliminary injunction should be issued. The steel companies argued that the President did not have the authority to seize the mills and Judge David Pine agreed to hear from both sides. When asked by the judge to provide a source for the President’s authority on the matter, the Assistant Attorney General cited Sections 1, 2, and 3 of Article II of the U.S. Constitution, as giving the President implied or inherent powers in a national emergency.

Judge Pine disagreed and, issued an injunction barring the government from holding the steel plants. The steelworks then entered a major strike, and the government appealed the lower court’s decision. The District Court of D.C. granted the government a stay, enabling it to resume control of the production plants until the Supreme Court could review the case.

On May 12, 1952, the U.S. Supreme Court heard, in the matter of Youngstown Sheet & Tube Co. v. Sawyer, arguments from both sides, then ruled in a vote of 6 to 3, that it would affirm the lower court’s ruling to issue an injunction preventing the government from taking over the steel plants. The Truman administration was shocked by the decision and shortly after, the steel workers went on strike for nearly 50 days. The strike ended when the President threatened once again to seize the plants.

Related Legal Terms and Issues

• Affirm – Confirm the decision of a lower court.
• Authority – The right or power to make decisions, to give orders, or to control something or someone.
• Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
• Injunction – A court order preventing an individual or entity from beginning or continuing an action.
• Pleadings – The specific papers presented to the court describing allegations or denials, asking the court to grant some specific relief or decide a pertinent point. Pleadings are the written documents filed with the court in any lawsuit.
• Restraining Order – A court order prohibiting an individual from carrying out a specified action, or from approaching or having contact with a specified person.
• Stay – A ruling by the court in criminal or civil proceedings that halt any further legal actions either permanently or temporarily.