On the Diane Rehm show, Jeff Rosen attempted to explain the President’s executive actions in terms of Justice Jackson’s concurring opinion in Youngstown:
“The crucial concurring opinion that defines this entire debate was issued by the great Justice Robert Jackson,” Rosen explained. “He identified three categories of presidential executive orders. When the president acts with congressional support, his power is at its highest ebb. When he acts in the face of congressional disapproval, his power is at its lowest ebb. And when Congress hasn’t spoken clearly, he acts in a ‘zone of twilight,’ to use Jackson’s wonderful phrase.”
“So what we really might do is run through these executive orders and see where President Obama is acting in the face of congressional disapproval and where he’s acting in the zone of twilight,” Rosen suggested. “My quick take is that most of these things are in the zone of twilight; there are [only] a few examples where President Obama has explicitly and openly thwarted Congress’ clear intent.”
As I discuss in Congressional Intransigence and Executive Power, much of the President’s executive actions are below the three tiers identified by Jackson.
Simply stated, in Youngstown, President Truman’s “Commander in Chief” powers clashed with Congress’s power to seize property. Jackson found that when these two powers clash, and Congress disapproves of the actions, the President acts at his lowest ebb. But there is no comparable analysis when discussing the President’s executive actions on the domestic front. Rewriting the Affordable Care Act, extending DACA, and other domestic initiatives are not done in pursuance of any executive duty, but rather in the ends of what I call his “policy powers.” There is no constitutional imperative on behalf of the President to act in this manner, as Truman asserted during the steel seizure. Here, Youngstown is inapplicable.
Here is an excerpt from my article that speaks directly to this issue:
Applying this rubric to the President’s other domestic executive actions—where he is not acting in the sphere of foreign affairs, and the Commander-in-Chief clause is inapplicable—it is not even clear that the President can scrap his way into Jackson’s third tier. In the case of the recess appointments to the NLRB, DACA, and the myriad revisions of the Affordable Care Act, Congress has opposed each of the actions taken. The President has not argued that any of these limitations imposed by Congress were unconstitutional, or violated the separation of powers. Rather, inherent authority has been relied upon to justify policies where there is a disagreement or impasse with Congress.
The Office of Legal Counsel has taken the position that while it may be valid for the President to decline to enforce the laws due to his view that they are “unconstitutional,” it would not be permissible to do so because he “opposes [them] for policy reasons.” Apropos, John Yoo charged the President with “the unprecedented stretching of the Constitution and the rule of law.” For, President Obama “is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).” Further, without the benefit of a raging war, bolstered by the Commander in Chief Clause, the President’s inherent authority over domestic matters becomes quite weak.
As Justice Frankfurter observed in Youngstown, the executive’s orders do “not direct that a congressional policy be executed in a manner prescribed by Congress—[they] directs that a presidential policy be executed in a manner prescribed by the President.” This is a helpful framework to deconstruct President Obama’s executive philosophy. In instances of executive action, the President is not merely directing that the intent of Congress be enforced, but he is ordering that his own agenda is implemented. Rather than the President taking care that the laws of Congress are faithfully executed, the Chief Executive is taking care that his policies are faithfully executed. There is a wide gap between these two goals. I refer to this authority to execute the personal agenda as the President’s policy power.
The President’s policy power is implied in Article II, as a function of the President serving as the only official in the entire federal government that must receive the support of all states. With those votes come a broad level of support, often referred to as a “mandate” (no, not that mandate) to advance his agenda. To use a phrase coined by Theodore Roosevelt, the President alone commands the ultimate and unique stage of the bully pulpit. With this platform, the President has the power to advance new ideas, shape policy, and twist the arms of legislators to enact his agenda. Traditionally, the President using his pen and phone would be viewed as an effort to influence those who can vote for his policies. The President’s powers to adjourn, and recess Congress are manifestations of the bully pulpit, and the attendant policy powers. However, the policy powers should best be viewed as setting the vision, and motivating others to get in line—not to change the law unilaterally when those efforts of persuasion fail.
Efforts to rely on the policy powers to enact substantive policies in the face of congressional intransigence should be viewed skeptically. The President is sidestepping Congress because it disagrees and refuses to enact his preferred policies. The situation does not fit neatly into the three tiers identified in Youngstown. He is not acting (1) in concert with Congress, (2) there is no murky twilight about the conjunction with Congressional wishes, and the (3) President isn’t even opposing Congress as a means to avoid a constitutional violation, or some sort of national catastrophe. The dispute revolves entirely around the President’s policy power.
We can call this Youngstown’s fourth tier. Beyond the “zone of twilight,” and lurking below the “lowest ebb,” is the “zone of insight.” Here, courts can probe the scope of the President’s inherent Article II powers. But the President cannot rely on his Commander in Chief powers, as these are matters over domestic affairs. The President also cannot rely on his duty to take care that the laws are faithfully executed, as the President is expressly declining to execute these laws. The President is not even justifying an action as a means to preserve the separation of powers, and avoid a constitutional violation. Rather, we are dealing only with the President’s desire to enact his agenda.
What is the source of this authority? If we start with all of Article II, and subtract the commander in chief clause, the take care clause, and all other vestings, we are left over with the president’s policy powers. Where the President acts based on his inherent policy power on domestic matters, in clear contravention of congressional intent, in an effort to maneuver around congressional intransigence, the executive’s actions should be afforded the least deference. The suspension of the laws, in an effort to bypass congressional intransigence, and enact new substantive policies, must be viewed skeptically. Whether the President wants to wait for it, or not, it is for Congress to decide on such matters. As Justice Frankfurter recognized in Youngstown, “Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President.”