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2014 Utah L. Rev. 793 (2014)
Holding the President Accountable to Constitutional Limits

handle is hein.journals/utahlr2014 and id is 825 raw text is: HOLDING THE PRESIDENT ACCOUNTABLE TO CONSTITUTIONAL LIMITS Louis Fisher* Abstract As with Congress and the judiciary, presidents have access to powers expressly stated in the Constitution and those necessarily implied in those grants. In highly limited circumstances, presidents may also exercise a prerogative (i.e., unilateral action), but that authority is frequently misunderstood and subject to abuse. Unlike those in the other branches, presidents lay claim to a host of powers far beyond enumerated and implied powers. In seizing steel mills in 1952 to prosecute the war in Korea, President Harry Truman acted on what he called an inherent power that was not subject to judicial or legislative checks. Presidents Richard Nixon and George W Bush relied on the same argument. All three presidents were rebuffed by Congress, the courts, and the general public. A lengthy list of other powers, all designed to broaden executive power beyond constitutional sources, include the sole organ doctrine; the unitary executive ; and various powers called emergency, plenary, residual, preclusive, and completion. These vague categories need to be carefully analyzed to understand why they exceed constitutional limits and endanger self- government and the system of checks and balances. INTRODUCTION Presidential influence expanded after World War II in large part by asserting executive authority beyond powers expressly enumerated or implied in the Constitution. Over the past six decades, presidential studies have promoted a fictional and idealized model of the office, describing the President as someone devoted to the national interest and surrounded by advisers with uncanny * 0 2014 Louis Fisher. Visiting Professor, William and Mary Law School. From 1970 to 2010, Dr. Fisher served as Senior Specialist in Separation of Powers with Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress. He thanks David Gray Adler, Reb Brownell, Henry Cohen, Neal Devins, Chris Edelson, Nancy Kassop, Richard Pious, Mort Rosenberg, Mitch Sollenberger, and Robert Spitzer for their comments and advice on this Article. Portions of this Article are drawn from the Author's treatise The Law of the Executive Branch: Presidential Power, published by Oxford University Press in January 2014. Some of the early sections of the book appear at http://books.google.com/books?id=ZbBNAgAAQBAJ&printsec=frontcover #v-onepage&g&f-false. 793

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