QUESTION: Regarding Youngstown: it's unclear to me why the part of Art. II that says "the executive power shall be vested in a President" did not allow President Truman to issue the order. We discussed how the Constitution doesn't spell out the presidential powers, and also how it doesn't limit the President's powers to only what is granted. What I'm missing is how we get from there to "can't do it." Is the key that the Article is about "executive" power? And that this power precludes "creating law," which, clearly, the opinion thinks the President is doing?
ANSWER: I don't think there is an easy, obvious answer to this question. But I think there are some concepts that help fill in the gaps. First, the "executive power" is a power to execute something. And that execution is generally the law as enacted by the Congress of the United States. In Youngstown, there was no federal statute to execute (at least according to the majority). If anything, Congress had precluded the President from taking the action at issue. Thus, the seizure of the steel mills could not be justified as a straightforward, typical use of the "executive power"--executing a law enacted by Congress. The question then becomes whether the President nonetheless had the authority to take this action. One argument as to why it should have been constitutional was that, given the powers granted by Article II to the President, Congress lacked the authority to prevent the President from taking this action. This the Court clearly rejects. While there might be some overlap in powers in this context, it certainly is not an area, said the Court, that is reserved exclusively to the President. A final argument--or perhaps one that hangs over all of this--is the one you reference, that the Constitution grants the president the "executive power," and not "all executive powers herein granted." Thus, it perhaps implies that the President possesses executive powers beyond those actually granted to the President in Article II. It is unclear precisely what this adds, other than to arguably establish the idea that the President is not completely limited to (1) executing laws enacted by Congress, and (2) fulfilling responsibilities or exercising powers expressly granted by Article II. Here, at least according to the majority, this does not really matter, as Congress had clearly disapproved of the President's action. As a result, even if the President does possess such additional authority, it would not have helped him here.