Copyright (c) 2006 The Columbia Law Review
Columbia Law Review
ARTICLE: THE PRESIDENT'S STATUTORY POWERS TO ADMINISTER THE LAWS
106 Colum. L. Rev. 263
Kevin M. Stack*
Presidents do not live by constitutional authority alone. Many of the most important presidential initiatives involve claims of statutory authorization. 1 In our constitutional system, the significance of the President's assertions of statutory powers should come as no surprise. The Constitution grants the President relatively few independent powers, at least in comparison to Congress. 2 Yet presidents are held politically accountable for how the federal government as a whole functions, and in particular for how administrative agencies exercise their vast delegated powers. 3 That combination - a dearth of independent constitutional powers and political pressure to utilize the bureaucracy effectively - provides strong incentives for presidents to claim that already-existing statutes authorize them to implement policy. Moreover, locating an existing statutory power as a basis for action saves the President the potentially costly and slow process of assembling a majority in Congress to enact legislation. Thus to understand the scope of the President's powers we must understand the President's statutory powers. That, in turn, requires interpreting statutes.
With any grant of statutory authority, two different questions arise: First, what powers are given, and second, to whom? On this second question, a persisting strain of thought endorses the view that statutes granting powers to executive officials should be read to include the President as an implied recipient of those powers. Attorney General Caleb Cushing's opinion arguing that no Head of Department granted authority by statute "can lawfully perform an official act against the will of the President".fo_c ...
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