Taking Cues from Congress: Judicial Review, Congressional Authorization, and the Expansion of Presidential Power

ABSTRACT In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power--Justice Jackson's tripartite framework and the historical gloss on executive power--congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power. INTRODUCTION Some of the Supreme Court's most significant cases address the scope of presidential power: Can the President indefinitely detain enemy combatants and try them by military commission? (1) Can the President unilaterally execute judgments of the International Court of Justice in preemption of state law? (2) Can the President require that claims filed in U.S. courts against a foreign state be brought in an international tribunal? (3) In determining the scope of presidential power, the Court often takes its cues from Congress. Under the famous tripartite framework from Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the Court will uphold presidential action that is authorized by Congress. (4) Under the analysis emanating from Justice Frankfurter's Youngstown concurrence, the Court may find that a history of congressional authorization has produced a gloss on the executive power vested in the President. (5) On one hand, the Court's reliance on congressional authorization makes sense. If the President and Congress, who are also bound by the Constitution, clearly agree that the President is authorized to exercise a particular power, who is the judiciary to second guess, especially in areas like foreign affairs where the judiciary is a confessed second-rate player? (6) On the other hand, courts and commentators have overlooked the fact that congressional authorization may result from a failure of the Constitution's canonical system of checks and balances. For various reasons, Congress may act against institutional interest to authorize the expansion of presidential power. When this occurs, judicial reliance on congressional authorization through the Court's accepted analyses aggravates a failure of checks and balances. Rather than correct, the Court piles on. The result--through court holding and foregone lawsuits against presidential actions authorized by Congress--is a troubling erosion of checks and balances with power accumulating in the President. This Article exposes the trouble with the judiciary taking cues from congressional authorization in evaluating presidential power. Part I discusses the nature and prominence of the analyses emanating from Youngstown--Justice Jackson's three-part paradigm and Justice Frankfurter's historical gloss--highlighting the risk that each may build upon a failure of checks and balances. Part II describes the scholarship that has come closest to identifying the checks and balances problem with basing presidential power on congressional authorization--a recent article by Curtis Bradley and Trevor Morrison. (7) The article identifies concerns with judicial reliance on passive congressional acquiescence, but does not detect problems with reliance on congressional authorization. …