SJ Quinney College of Law, University of Utah


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.