Executive Powers & Privileges


Although the Constitution grants some specific powers to each of the three branches of government, there is no provision specifically declaring that each shall be separate.  James Madison, at the time of the passing of the Bill of Rights,  proposed a amendment to accomplish just that but was rejected.  Separation prevents concentration of power (seen as the root of tyranny) and provides each branch with weapons to fight off encroachment by the other two branches.   Madison argued in  Federalist  51, "Ambition must be made to counteract ambition."

A number of views exist as to the extent of executive power ranging from the position that presidents may only exercise powers specifically granted by the Constitution or delegated to the president by Congress under one of its enumerated powers, to the extreme opposite that presidents may do anything not specifically prohibited by the Constitution. The Supreme Court has also indicated that Congress may impliedly or expressly disapprove of the exercise of a power by a president. (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 1952)

Justice Anthony Kennedy noted in United States v. Reynolds, 345 U.S. 1, 7 (1953) that "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.'" .  In United States v. Nixon, 418 U.S. 683 (1974) , the Supreme Court made very clear that neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege.  The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the seeking branch would plainly conflict with the constitutional function of the other branches.  The court held that it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.  One thing is for sure, executive privilege cannot, in the face of legal inquiry, legally be used to cover up actions and policies that involve an outright violation of the law.  One of the problems is that the Bush administration in overtly abusing the process, is gambling that Congress will choose to pick its fights, and by not challenging each and every abusive claim, will set a precedent for future claims.

The stated goal of the administration of George W. Bush was to claim more powers for the presidency.  Led by Vice President Cheney the administration  used the Unitary Executive theory to attempt to cut Congress out of its approval and oversight powers.  Using a combination of signing statements, executive orders and claims of executive privilege along with a constant claim of national security considerations, the Bush administration  created an Imperial Presidency shrouded with a heavy veil of secrecy.  The term 'separation of powers" has taken on new meanings and the system of checks and balances, so crucial to our constitutional democracy has been severely wounded..  Thankfully, the Courts, when given the opportunity, have rejected the administration's positions.  Charlie Savage's book, "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy" provides an objective tracing of the steps taken since 9/11.  Endorsed by Conservatives and Liberals alike it is "a must read for anyone who cares about our constitutional system of government."



Imperial Presidency Has Long History
A National Journal article by Paul Starobin Feb. 2006    


Video and Docs

Cheney's War

PBS's FRONTLINE examines the battle over the power of the presidency and Cheney's way of looking at the Constitution.

For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.



The New Imperial Presidency - Renewing Presidential Power After Watergate
The entire book by Andrew Rudalevige is available from the below link

About the Book
In The New Imperial Presidency, Andrew Rudalevige suggests that the congressional framework meant to advise and constrain presidential conduct since Watergate has slowly eroded. Rudalevige describes the evolution of executive power in our separated system of governance. He discusses the abuse of power that prompted what he calls the "resurgence regime" against the imperial presidency and inquires as to how and why--over the three decades that followed Watergate--presidents have regained their standing.

Chief executives have always sought to interpret constitutional powers broadly. The ambitious president can choose from an array of strategies for pushing against congressional authority; finding scant resistance, he will attempt to expand executive control. Rudalevige's important and timely work reminds us that the freedoms secured by our system of checks and balances do not proceed automatically but depend on the exertions of public servants and the citizens they serve. His story confirms the importance of the "living Constitution," a tradition of historical experiences overlaying the text of the Constitution itself.



 Imperial presidency, invisible Congress

Andrew Rudalevige, author of ‘The New Imperial Presidency’, posits that the post-Watergate checks to presidential power have crumbled. He proposes that reporters ask members of Congress when and if they plan to reassert themselves.



Executive Enforcement of Treaties With Foreign Countries vs States Rights.  (Medellin v. Texas)

The U.S. Supreme Court rules that an International Court of Justice judgment is not directly enforceable as domestic law in state court.  While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be "self-executing" and is ratified on that basis.

   The Opinion

  The Federalist Society Debate - Part 1  

  The Federalist Society Debate - Part 2


 2004 Report    


2008 Report

War Powers - President v. Congress

Reviews of the War Powers Resolution of 1973

How are the President and Congress implementing it?  What problems exist?  Suggestions for correcting.
Compare the 2004 report to Congress with the 2008 report of the National War Powers Commission
Great background documents also available




Immunity of Former Counsel to the President From Compelled Congressional Testimony

Memo from Attorney General's Office to Counsel for President Bush claims that the former Counsel to the President is immune from compelled congressional testimony about matters that arose during her tenure as Counsel to the President and that relate to her official duties in that capacity and is not required to appear in response to a subpoena to testify about such matters.

This same memo was used regarding the testimony of the Counsel to the Vice President who did testify on limited matters.

The administration's position has been struck down by the U.S. District Court.



Should Use of Executive Privilege Be Reduced?

Douglas Kmiec is Chair & Professor of Constitutional Law, Pepperdine University. Previously, he was Head of the Office of Legal Counsel in the administrations of Presidents Reagan and George H.W. Bush.

Professor Kmiec believes that the use of Executive Privilege must be reined in and that the current administration is abusing the privilege.

For more discussion of the role of the Office of Legal Counsel in relation to the “torture” interrogation policies and internal executive discussions that may give rise to privilege claims, interested readers may consult Professor Kmiec’s recent article Yoo’s Labours Lost, 31 Harv. J. of L. & Pub Pol’y 795 (2008).

© Findlaw  from Legal Commentary


Executive Privilege and Signing Statements

Outline by Peter M Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University