What a President Can Legally Do with His Phone and Pen, Part II

President Richard NixonDavid Frost: you’re saying is that there are certain situations … where the president can decide that it’s in the best interests of the nation or something, and do something illegal.

Richard Nixon: Well, when the president does it that means that it is not illegal.[1]

 “… if Congress won’t act soon … I will.” Barack Obama, 2013 State of the Union Address

The idea that a president can run the country with his pen and phone and can go around the Congress is not new.  Some presidents have not felt it necessary to respect decisions of the Supreme Court[2] and many presidents have used their pens beyond their constitutional or statutory powers.  It has often seemed as though they agreed with President Nixon, though no other president stated the idea so bluntly.  The legal sources of Article II constitutional presidential authority are discussed in Part I.

Examples of Presidential Orders beyond Constitutional or Statutory Authority

Abraham Lincoln censored the press, suspended habeas corpus and spent public money without congressional appropriations.  Franklin Roosevelt ordered the internment of Japanese-Americans on his own authority. Harry Truman seized steel mills and in a certain respect the steel company presidents. Bill Clinton ignored federal law in imposing hiring conditions on federal contractors.  George W. Bush issued a memorandum to state courts that the Supreme Court determined he was without power to enforce.

Abraham LincolnAbraham Lincoln: Censorship, Arrests without Due Process, Spending without Appropriations

Abraham Lincoln ran the Civil War’s early months by presidential directives.  In office only six weeks, on April 15, 1861, Lincoln issued proclamations to activate troops, to convene Congress on July 4, to procure warships, to expand the military’s size, and to advance payments from the Treasury without congressional approval. The troop activations and convening congress were clearly constitutional.[3]  Procuring the warships, expanding the military and providing for payment, were not authorized by either the Constitution or congress.[4]

Lincoln’s administration arrested newspaper owners and editors and prohibited the mails from distributing newspapers disagreeing with the administration.  Lincoln also suspended the “writ of habeas corpus[5], or the right of a person in government custody to have a judge to determine if the detention is legal. This action was declared unconstitutional by Supreme Court Chief Justice Roger Taney.[6]

Franklin RooseveltFranklin Roosevelt Inters Thousands of Japanese-Americans

Franklin Roosevelt’s Executive Order (E.O.) No. 9066 authorized the military internment of tens of thousands of Japanese-Americans and reflected an extreme, unprecedented claim of authority over the lives of ordinary Americans.  While Roosevelt relied upon a broad reading of a president’s inherent military authority and it took some 40 years, Congress eventually determined that these actions were discriminatory and provided monetary damages to the citizens detained.

Harry S TrumanHarry Truman Seizes American Steel Industry

During the Korean War, unions were threatening strikes at America’s steel plants.  President Truman issued an executive order directing the secretary of commerce to seize possession of the nation’s steel mills. In carrying out this order, the secretary directed the presidents of the seized steel companies to serve as operating managers for the U.S. Government.[7]  In less than three months the United States Supreme Court invalidated Truman’s order.  Truman had no constitutional power or congressional delegation to seize the steel mills.

President Bill ClintonBill Clinton Alters Requirements for Federal Contracts

In 1993, President Clinton urged Congress to enact a statute that would prohibit employers from hiring permanent replacements for workers who are on strike. Congress refused to authorize the change in law. In 1995, President Clinton issued Executive Order 12954 requiring all large government contractors to agree not to hire permanent replacements for striking employees.

Clinton attempted to achieve with a stroke of a pen to change a law that Congress had refused to change. The Court of Appeals for the District of Columbia Circuit unanimously overturned Clinton’s order and related regulations that had been issued by the Secretary of Labor.  President Clinton ordered a change for Federal Contractors after asking Congress to change the law and Congress refused.  His orders were found to be illegal.

President George W. BushGeorge W. Bush Orders State Courts to Comply with International Judgment

 The Constitution does not give the president authority to interfere with the operation of state courts. That lack of authority did not stop George W. Bush from issuing the following:

“I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice … by having State courts give effect to the decision…”

President Bush’s “determination” was swept aside by the Supreme Court as having no basis in the Constitution or congressional statute. A president saying the Constitution has vested him with authority does not make it true.

Robert JacksonStandard for Judging Legality of Presidential Directive

The standard for judging the legality of presidential directive has come from Justice Robert Jackson’s concurring opinion in the Harry Truman Steel Seizure case.

Justice Jackson’s Standards for Use of Presidential Power 

  1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.  A presidential order authorized by Congress will be constitutional, unless Congress itself had acted unconstitutionally.
  2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers.   Such independent power comes from his constitutional duties. These powers are limited by the constitutional separation of power between the executive, the Congress and the courts.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.  Under this scenario, it is likely the president has acted in an unconstitutional manner and his order is illegal.

Can President Obama Legally Run the Country with His Pen and Phone?

The president cannot run the country with his pen and phone.  Part I explains the basis of presidential authority. The examples demonstrate how other presidents have used their pens to go outside the law.  The articles of impeachment against Andrew Johnson accused him of violating a statute and failing to faithfully execute the laws.  Part III will measure some of President Obama’s uses of his pen against Justice Jackson’s standards.


[1]1977 David Frost interview with Richard Nixon.

[2]  Andrew Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it,” his actual words to Brigadier General John Coffee were: “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”  This was in response to a Supreme Court decision, Worcester v. Georgia. 

[3]Activating existing troops was clearly within Lincoln’s power as commander-in-chief.  The Constitution explicitly authorizes the president to convene Congress.

[4]While the president is commander-in-chief of the troops congress gives him, it is Congress’ responsibility to authorize the troops, equipment and funding.

[5]“Habeas Corpus” literally in Latin: you have the body, became part of the English-American legal tradition as part of the Magna Carta in 1215.  English-American law required (and to this day requires) that a person being held by the government has the right to have the government explain to a judge the legal basis for the detention.  If the government cannot provide a legal reason, the the judge can order the person to be set free.

[6]Though Taney ruled the suspension of habeas corpus illegal, his ruling was generally ignored.  Later, during the war, Congress did pass legislation authorizing suspension of habeas corpus.  Detailed information of this very complex issue is at: Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis 

[7]The steel mill presidents were essentially illegally drafted into the employment of the United States.

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  1. […] David Frost: you're saying is that there are certain situations … where the president can decide that it's in the best interests of the nation or something,  […]

  2. […] has indicated he will use his pen and his phone to bypass Congress.  Richard Nixon simply said: “Well, when the president does it that means that it is not illegal.”  While the president may be the most powerful individual on the planet, he is not an omnipotent […]