The following questions are for you to consider and help guide your reading as you prepare for our Module 5. 

MODULE 5

BLOCK 1

1.  What are the enumerated powers of the President? Which powers does President Truman assert as the basis for his Executive Order requiring the seizure of the nation’s steel mills?  Can you explain why the Court does not accept his argument?  Who was right, Truman or the Court?

2.  Should the President have implied powers in addition to the enumerated powers? What are the advantages of the President having implied powers and what are the corresponding dangers?

3.  There is no “necessary and proper” power under Article II. If the President does have implied powers, what are the arguments in support of that claim? 

BLOCK 2

1.  What is the separation of powers problem with allowing the President to exercise a line-item veto over only some parts of a bill passed by Congress, as opposed to signing or vetoing the whole bill?

2.  What is the standard for determining whether Congress has unconstitutionally delegated legislative authority to the executive branch?

3.  Why does the Court invalidate the legislative veto provision in INS v. Chadha? What makes the legislative veto an act of lawmaking?

BLOCK 3

1.  What is the difference between an Officer of the United States and an inferior officer within the meaning of the Appointments Clause?

2.  In what circumstances can Congress block or limit the President’s power to remove an Officer of the United States?

3.  In what circumstances can Congress block or limit the President’s power to remove an inferior officer?

BLOCK 4

1.  According to the Court in United States v. Nixon, what was the problem with President Nixon’s assertion of absolute executive privilege in his attempt to block the subpoena of the transcripts of his secret audio recordings?

Denver Law students should go to the course Canvas page to view this under the Course Videos Module.

Mr. Justice BLACK delivered the opinion of the Court.

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges here from the following series of events:

In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees' representative, United Steelworkers of America, C.I.O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization to investigate and make recommendations for fair and equitable terms of settlement. This Board's report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a.m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, calling upon the presidents of the various seized companies to serve as operating managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Twelve days later he sent a second message. Congress has taken no action.

Obeying the Secretary's orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement. Opposing the motion for preliminary injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had ‘inherent power’ to do what he had done—power “supported by the Constitution, by historical precedent, and by court decisions.”. . .

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure.

Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports.

It is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “the executive Power shall be vested in a President * * *”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.”

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States * * *.” After granting many powers to the Congress, Article I goes on to provide that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can makes laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.

It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution “in the Government of the United States, or in any Department or Officer thereof.”

The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

Mr. Justice JACKSON, concurring in the judgment and opinion of the Court.

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
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, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category.

Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government, another, condemnation of facilities, including temporary use under the power of eminent domain. The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.

This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.

I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textualism.

Mr. Justice FRANKFURTER, concurring.

The pole-star for constitutional adjudications is John Marshall's greatest judicial utterance that “it is a constitution we are expounding.” McCulloch v. Maryland. That requires both a spacious view in applying an instrument of government “made for an underfined and expanding future,” and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today.

Marshall's admonition that “it is a constitution we are expounding” is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution—that of separation of powers. “The great ordinances of the Constitution do not establish and divide fields of black and white.

”The issue before us can be met, and therefore should be, without attempting to define the President's powers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what authority belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscriminating hotch-potch past presidential actions claimed to be derived from occupancy of the office, as it is to conjure up hypothetical future cases. The judiciary may, as this case proves, have to intervene in determining where authority lies as between the democratic forces in our scheme of government. But in doing so we should be wary and humble. Such is the teaching of this Court's role in the history of the country.

The question before the Court comes in this setting. Congress has frequently—at least 16 times since 1916— specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case it has qualified this grant of power with limitations and safeguards. This body of enactments demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully circumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to particular circumstances such as “time of war or when was is imminent,” the needs of ‘public safety’ or of ‘national security or defense,’ or ‘urgent and impending need.’ The period of governmental operation has been limited, as, for instance, to “sixty days after the restoration of productive efficiency.”

Congress in 1947 was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in advance, without special congressional enactment to meet each particular need. . . A proposal that the President be given powers to seize plants to avert a shutdown where the ‘health or safety’ of the nation was endangered, was thoroughly canvassed by Congress and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that as a result of that legislation the only recourse for preventing a shutdown in any basic industry, after failure of mediation, was Congress. . .

To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by s 1 of Art. II. . .

A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:

“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid fricition, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Myers v. United States, 272 U.S. 52.

Mr. Chief Justice VINSON, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.

The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation's steel mills during the existing emergency because “a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors and airmen engaged in combat in the field.” Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers the President and of future Presidents to act in time of crisis, we are compelled to register this dissent.

In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised.Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.

[Chief Justice Vinson then discussed extensively the role of the United States in engaging in peace keeping within the world community. It also discussed several pieces of Congressional legislation that he is charged with administering and enforcing in this regard.]

The President has the duty to execute the foregoing legislative programs. Their successful execution depends upon continued production of steel and stabilized prices for steel. Accordingly, when the collective bargaining agreements between the Nation's steel producers and their employees, represented by the United Steel Workers, were due to expire on December 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel production.

[After President Truman sent his Executive Order to Congress], [t]welve days passed without action by Congress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again described the purpose and need for his action and again stated his position that “The Congress can, if it wishes, reject the course of action I have followed in this matter.” Congress has not so acted to this date.

Plaintiffs do not remotely suggest any basis for rejecting the President's finding that any stoppage of steel production would immediately place the Nation in peril. At the time of seizure there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiff's counsel tells us that ‘sooner or later’ the mills will operate again. That may satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming—‘sooner or later,’ or, in other words, ‘too little and too late.’

Accordingly, if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case.

A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.

Focusing now on the situation confronting the President on the night of April 8, 1952, we cannot but conclude that the President was performing his duty under the Constitution to “take Care that the Laws be faithfully executed'—a duty described by President Benjamin Harrison as “the central idea of the office.””

The President reported to Congress the morning after the seizure that he acted because a work stoppage in steel production would immediately imperil the safety of the Nation by preventing execution of the legislative programs for procurement of military equipment. And, while a shutdown could be averted by granting the price concessions requested by plaintiffs, granting such concessions would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both.

Much of the argument in this case has been directed at straw men. We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any question of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the temporary action he had taken only to preserve the legislative programs from destruction until Congress could act.

The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws—both the military procurement program and the anti-inflation program—has not until today been thought to prevent the President from executing the laws. [T]he President is a constitutional officer charged with taking care that a ‘mass of legislation’ be executed. Flexibility as to mode of execution to meet critical situations is a matter of practical necessity.

Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. There is no question that the possession was other than temporary in character and subject to congressional direction—either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that in this case the President acted in full conformity with his duties under the Constitution.

Justice STEVENS delivered the opinion of the Court.

[Under] [t]he Line Item Veto Act (Act), the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, and two provisions in the Taxpayer Relief Act of 1997. Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. We now hold that . . . the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, § 7, cl. 2, of the Constitution.

The Line Item Veto Act gives the President the power to “cancel in whole” three types of provisions that have been signed into law: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.”

The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. He must determine, with respect to each cancellation, that it will “(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest.” Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. It is undisputed that the President meticulously followed these procedures in these cases.

A cancellation takes effect upon receipt by Congress of the special message from the President. If, however, a “disapproval bill” pertaining to a special message is enacted into law, the cancellations set forth in that message become “null and void.” The Act sets forth a detailed expedited procedure for the consideration of a “disapproval bill,” but no such bill was passed for either of the cancellations involved in these cases. A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, but he does, of course, retain his constitutional authority to veto such a bill.

The effect of a cancellation is plainly stated in § 691e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item “from having legal force or effect.” 

[The plaintiffs in this case were parties that would have received financial benefits from the laws until the President cancelled the measures in thsoe laws that would have allocated thsoe benefits to them.]

In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. “[R]epeal of statutes, no less than enactment, must conform with Art. I.” There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President “shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient ....” Art. II, § 3. Thus, he may initiate and influence legislative proposals. Moreover, after a bill has passed both Houses of Congress, but “before it become[s] a Law,” it must be presented to the President. If he approves it, “he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” Art. I, § 7, cl. 2. His “return” of a bill, which is usually described as a “veto,” is subject to being overridden by a two-thirds vote in each House.

There are important differences between the President's “return” of a bill pursuant to Article I, § 7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.” What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress.

The text of the Act expressly provides, however, that a cancellation prevents a direct spending or tax benefit provision “from having legal force or effect.” [B]y canceling the items at issue in these cases, the President made them entirely inoperative as to appellees. The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.

[We are not] persuaded by the Government's contention that the President's authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act's predecessors could even arguably have been construed to authorize such a change.

Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points.

First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of “ensur[ing] greater fiscal accountability in Washington.”

Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the “finely wrought” procedure commanded by the Constitution. Thus, because we conclude that the Act's cancellation provisions violate Article I, § 7, of the Constitution, we find it unnecessary to consider the District Court's alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.”

Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution.

If there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,” such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.

Justice BREYER, with whom Justice O'CONNOR and Justice SCALIA join as to Part III, dissenting.

In my view the Line Item Veto Act (Act) does not violate any specific textual constitutional command, nor does it violate any implicit separation-of-powers principle. Consequently, I believe that the Act is constitutional.

I approach the constitutional question before us with three general considerations in mind. First, the Act represents a legislative effort to provide the President with the power to give effect to some, but not to all, of the expenditure and revenue-diminishing provisions contained in a single massive appropriations bill. And this objective is constitutionally proper.

When our Nation was founded, Congress could easily have provided the President with this kind of power. In that time period, our population was less than 4 million, federal employees numbered fewer than 5,000, annual federal budget outlays totaled approximately $4 million. . .

At that time, a Congress, wishing to give a President the power to select among appropriations, could simply have embodied each appropriation in a separate bill, each bill subject to a separate Presidential veto.

Today, however, our population is about 250 million, the Federal Government employs more than 4 million people, the annual federal budget is $1.5 trillion, and a typical budget appropriations bill may have a dozen titles, hundreds of sections, and spread across more than 500 pages of the Statutes at Large. See, e.g., Balanced Budget Act of 1997, Pub.L. 105–33, 111 Stat. 251. Congress cannot divide such a bill into thousands, or tens of thousands, of separate appropriations bills, each one of which the President would have to sign, or to veto, separately. Thus, the question is whether the Constitution permits Congress to choose a particular novel means to achieve this same, constitutionally legitimate, end.

Second, the case in part requires us to focus upon the Constitution's generally phrased structural provisions, provisions that delegate all “legislative” power to Congress and vest all “executive” power in the President. The Court, when applying these provisions, has interpreted them generously in terms of the institutional arrangements that they permit.

Third, we need not here referee a dispute among the other two branches. And, as the majority points out: “‘When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons.’” 

These three background circumstances mean that, when one measures the literal words of the Act against the Constitution's literal commands, the fact that the Act may closely resemble a different, literally unconstitutional, arrangement is beside the point. To drive exactly 65 miles per hour on an interstate highway closely resembles an act that violates the speed limit. But it does not violate that limit, for small differences matter when the question is one of literal violation of law. No more does this Act literally violate the Constitution's words.

The background circumstances also mean that we are to interpret nonliteral separation-of-powers principles in light of the need for “workable government.” If we apply those principles in light of that objective, as this Court has applied them in the past, the Act is constitutional.

The Court believes that the Act violates the literal text of the Constitution. A simple syllogism captures its basic reasoning:

Major Premise: The Constitution sets forth an exclusive method for enacting, repealing, or amending laws.

Minor Premise: The Act authorizes the President to “repea[l] or amen[d]” laws in a different way, namely by announcing a cancellation of a portion of a previously enacted law.

Conclusion: The Act is inconsistent with the Constitution.

I find this syllogism unconvincing, however, because its Minor Premise is faulty. When the President “canceled” the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.

To take a simple example, a legal document, say, a will or a trust instrument, might grant a beneficiary the power (a) to appoint property “to Jones for his life, remainder to Smith for 10 years so long as Smith ... etc., and then to Brown,” or (b) to appoint the same property “to Black and the heirs of his body,” or (c) not to exercise the power of appointment at all. To choose the second or third of these alternatives prevents from taking effect the legal consequences that flow from the first alternative, which the legal instrument describes in detail. Any such choice, made in the exercise of a delegated power, renders that first alternative language without “legal force or effect.” But such a choice does not “repeal” or “amend” either that language or the document itself. The will or trust instrument, in delegating the power of appointment, has not delegated a power to amend or to repeal the instrument; to the contrary, it requires the delegated power to be exercised in accordance with the instrument's terms.

This is not the first time that Congress has delegated to the President or to others this kind of power—a contingent power to deny effect to certain statutory language. [Justice Breyer then cited to several federal statutes that contain this feature].  Every one of these examples, like the present Act, delegates the power to choose between alternatives, each of which the statute spells out in some detail. None of these examples delegates a power to “repeal” or “amend” a statute, or to “make” a new law. Nor does the Act. Rather, the delegated power to nullify statutory language was itself created and defined by Congress, and included in the statute books on an equal footing with (indeed, as a component part of) the sections that are potentially subject to nullification.

B. Separation of Powers and the Intent Of The Framers

The original intent of the framers was to require the President to either sign or veto a bill presented by Congress in its entirety. A line-item veto is not a constitutionally permissible alternative even when the President believes that some provisions of a bill are unconstitutional.

The plain language of Article I, §7, clause 2 (Presentment Clause) compels this conclusion. It speaks of the signing or vetoing of a “Bill,” and a veto override vote in Congress by two-thirds majorities to enact a “Bill.” There is not even a hint that the President could sign or veto part of a bill and elect to enforce a law that differed from the one passed by Congress. But for a vagrant remark by James Wilson, not a syllable uttered during the constitutional convention or state ratification debates questions the plain meaning of the Presentment Clause. Our first President George Washington confirmed the clear understanding of the Clause when he declared that a bill must be either approved in all of its parts or rejected in toto. Writings of George Washington 96 (J. Fitzgerald ed., 1940).

Accordingly, the United States Supreme Court in Clinton v. New York, 524 U.S. 417 (1998), held the line item veto unconstitutional, even if approved in a statute enacted by Congress. Writing for the Court, Justice John Paul Stevens elaborated: “Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only ‘be exercised in accord with a single finely wrought and exhaustively considered procedure.’ Our first President understood the text of the Presentment Clause as requiring that he either ‘approve all the parts of a Bill, or reject it in toto.’” 524 U.S. 439-440 (quoting INS v. Chadha, supra at 951).

The presidential oath enshrined in Article II, § 1, clause 7 requires a President to the best of his ability to “defend the Constitution of the United States.” There are many ways in which a President can defend the Constitution. One is to veto a bill that he believes violates the Constitution in whole or in part. The President must defend the entire Constitution, and that includes the Presentment Clause and Article II, § 3, which stipulates that the President “shall take Care that the Laws be faithfully executed….”

Article II, §3 has important historical roots in the complaint about non-enforcement of laws made against King James II by the British Parliament, which ultimately occasioned his dethronement. Thus, the English Bill of Rights of 1688 indicted the King for “assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament.” It declared “That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.” Because the “take care” obligation of the President requires him to faithfully execute all laws, his obligation is to veto bills he believes are unconstitutional. He may not sign them into law and then emulate King James II by refusing to enforce them.

In United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806), defendants claimed a right to violate the Neutrality Act because of a presidential authorization. The government countered: “Among the powers and duties of the president…he is expressly required to ‘take care that the laws be faithfully executed.’ They will not venture to contend that this clause gives the president the right of dispensing with the law…He has a qualified veto, before the law passes…When it has become law…it is his duty to take care that it be faithfully executed. He cannot suspend its operation, dispense with its application, or prevent its effect, otherwise than by the exercise of [his] constitutional power of pardoning, after conviction. If he could do so, he could repeal the law, and would thus invade the province assigned to the legislature, and become paramount to the other branches of the government.”

Supreme Court Justice William Patterson, sitting on the court, agreed: “[The Neutrality Act] imparts no dispensing power to the president. Does the constitution give it? Far from it, for it explicitly directs that he shall ‘take care that the laws be faithfully executed’…True, a nolle prosequi may be entered, a pardon may be granted; but these presume criminality, presume guilt, presume amenability to judicial investigation and punishment, which are very different from a power to dispense with the law.”

Article II, § 1, vests the “Executive Power” in the President. But at least since 1688, the executive power as conceived in Great Britain and America excluded a power to dispense with or suspend execution of the laws for any reason.

III. THE ABA TASK FORCE RECOMMENDATIONS

If our constitutional system of separation of powers is to operate as the framers intended, the President must accept the limitations imposed on his office by the Constitution itself. The use of presidential signing statements to have the last word as to which laws will be enforced and which will not is inconsistent with those limitations and poses a serious threat to the rule of law. It is this threat which the Task Force recommendations seek to address.

A.  Signing Statements Must Respect the Rule of Law and Our

Constitutional System of Separation of Powers

As noted above, the first Recommendation urges that the President and those who succeed him cease the practice of using presidential signing statements to state his intention to disregard or decline to enforce a law or to interpret it in a manner inconsistent with the will of Congress. One of the most fundamental innovations of the American Constitution was to separate the executive from the legislative power. The Framers regarded this separation of powers as “essential to the preservation of liberty.” James Madison, The Federalist No. 51.

In particular, the Framers sought to prevent in our new government the abuses that had arisen from the exercise of prerogative power by the Crown. Their device for doing so was to vest lawmaking power in the Congress and enforcement power in the President, and to provide in Article II § 3 that the President “shall take Care that the Laws be faithfully executed.” As the Supreme Court stated in holding that President Truman could not seize the nation’s steel mills during the Korean war without congressional authorization, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

The Constitution accordingly embodies “the Framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” INS v. Chadha, 462 U.S. 919 (1983). Under Article I, §7, every law requires a majority of each house of Congress and presentment to the President for approval or disapproval. The Constitution thus limits the President’s role in the lawmaking process to the recommendation of laws he thinks wise and the vetoing of laws he thinks unwise.

It may well seem burdensome or frustrating to a President to be so confined in his response to the legislative enactments of the Congress. The Supreme Court has acknowledged that “[the choices . . .made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable.” But the Court has reminded us that “those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked,” and often restated that there is no “better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.” INS v. Chadha, supra.

The Supreme Court has struck down both one-House vetoes, which sought to enlarge the power of Congress, and presidential line-item vetoes, which sought to diminish it, as inconsistent with those restraints. Presidential signing statements that express an intent to disregard or effectively rewrite enacted legislation are similarly inconsistent with the “single, finely wrought and exhaustively considered, procedure” provided for by the Framers.

B. Presidential Concerns Regarding Constitutionality of Pending

Bills Should Be Communicated To Congress Prior To Passage

The White House and each of the 15 major executive departments maintain large and sophisticated legislative or congressional affairs offices and routinely and closely track the progress of bills introduced in the Congress. Moreover, much legislation considered by Congress each session emanates initially from the Executive Branch. For that reason, it is unlikely that important legislation would be considered and passed without the opportunity for full and fair input by the Administration.

Therefore, our second recommendation urges the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage. It is reasonable to expect the President to work cooperatively with Congress to identify and ameliorate any constitutional infirmities during the legislative process, rather than waiting until after passage of legislation to express such concerns in a signing statement.

C.  Signing Statements Should Not Be A Substitute For A

Presidential Veto

The third Recommendation urges the President to confine signing statements to the meaning, purpose, or significance of bills he has signed into law, which he then must faithfully execute. For example, it is entirely appropriate for the President to praise a bill as a landmark in civil rights or environmental law and applaud its legislative sponsors, or to provide his views as to how the enactment of the law will affect the welfare of the nation.

When Congress enacted the Sarbanes Oxley Act, President Bush wrote in his signing statement that it contained "the most far-reaching reforms of American business practices since the time of Franklin Delano Roosevelt." And when President Carter signed the Foreign  Intelligence Surveillance Act of 1978, he wrote in his signing statement:

The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive’s authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism. It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person’s communications are concerned, by a court order. And it will protect the privacy of the American people.

In short, the act helps to solidify the relationship of trust between the American people and their Government. It provides a basis for the trust of the American people in the fact that the activities of their intelligence agencies are both effective and lawful. It provides enough secrecy to ensure that intelligence relating to national security can be securely required, while permitting review by the courts and Congress to safeguard the rights of Americans and others.

Id. Such statements contribute to public dialogue and accountability.

However, the Recommendation urges the President not to use signing statements in lieu of compliance with his constitutional obligation to veto any bill that he believes violates the Constitution in whole or in part. That obligation follows from the original intent and practice of the Founding Fathers, including President George Washington.

To sign a bill and refuse to enforce some of its provisions because of constitutional qualms is tantamount to exercising the line-item veto power held unconstitutional by the Supreme Court in Clinton v. New York, supra. By honoring his obligation to veto any bill he believes would violate the Constitution in any respect the President honors his oath to defend the Constitution. That obligation ensures that both Congress and the President will be politically accountable for their actions and that the law the President enforces will not be different from the one Congress enacted.

In 1969, future Chief Justice William H. Rehnquist, then the Then Assistant Attorney General for the Office of Legal Counsel, wrote: "It is our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a Congressional directive to spend ....[T]he execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it is free to decline to execute them." See Hearings on the Executive Impoundment of Appropriated Funds Before the Subcommittee on Separation of Powers of the Senate Judiciary Committee, 92^nd Cong., 1st Sess. 279, 283 (1971).

The Task Force did not ignore the rare possibility that a President could think it unavoidable to sign legislation containing what he believed to be an unconstitutional provision. As illustrated by the many bills enacted by Congress that contain one-House or committee veto directives that had been specifically declared unconstitutional by the Supreme Court in Chadha, it is not far-fetched to suppose that Members of Congress could persist in enacting unquestionably unconstitutional provisions. There may also be situations where, on first look, insignificant provisions in omnibus emergency-relief or military-funding measures, enacted as Congress recesses or adjourns, would seem not to merit a veto.

In acknowledging this possibility, the Task Force does not wish to suggest that it finds acceptable the use of signing statements to signal executive branch noncompliance with a provision enacted by Congress. The Founding Fathers contemplated bills with both attractive and unattractive features packaged together with unrelated provisions, including appropriations riders.

The President nonetheless was expected to veto even “urgent” bills that he believed were unconstitutional in part and, if the urgency were genuine, Congress could either delete the offending provisions or override the President. Only once or twice in the nation's history has Congress overridden a veto occasioned by the President's belief in the unconstitutionality of the bill presented.

If the President and Congress are unable to resolve their differences regarding the constitutionality of proposed legislation, and practical exigencies militate against a veto, and if the President therefore signs the bill and issues a signing statement, he should clearly and publicly state in his signing statement his views on the legislation and his intentions with respect to enforcement or implementation, and should then seek or cooperate with others in obtaining timely judicial review regarding the provision in dispute (see section E, below).

Such situations notwithstanding, the Task Force opposes the use of presidential signing statements to effect a line-item veto or to usurp judicial authority as the final arbiter of the constitutionality of congressional acts. Definitive constitutional interpretations are entrusted to an independent and impartial Supreme Court, not a partisan and interested President. That is the meaning of Marbury v. Madison. A President could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto. The President's constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.

D. Legislation Is Needed To Ensure That Congress And The

Public Are Fully Informed About The Use Of Presidential

Signing Statements

Today, when the President issues a signing statement, it is published in the Weekly Compilation of Presidential Documents. In addition, since the Reagan administration, signing statements have been included with the legislative history reprinted in the volumes of the U.S. Code Congressional & Administrative News.

However, there is no requirement that these statements be submitted to Congress or made readily available to the public. There is also no requirement that the President explain the reasons and legal basis for a statement in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.

The result, until quite recently, was that few members of Congress, and even fewer members of the public, were aware that the President had taken these actions, and that they might seriously undercut the legislation he had signed.

The recommendation seeks to remedy this situation by urging Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements he issues, and in any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth in full the reasons and legal basis for the statement. The proposed legislation would further require that the materials submitted by the President be made available in a publicly accessible database.

Could a President, in a signing statement, disregard even this legislation? That is precisely what occurred in 2002 when President Bush II signed a bill which required the Attorney General to submit a detailed report of any instance in which he or any Justice Department official "establishes or implements a formal or informal policy to refrain . . . from enforcing, applying, or administering any provision of any Federal statute . . . on the grounds that such provision is unconstitutional." Pub. L. 107-273, § 202(a), codified at 28 USC § 530D. The President issued a signing statement which read, in pertinent part:

The executive branch shall construe § 530D of title 28, and related provisions in § 202 of the Act, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The statement went on to say that the President had instructed executive agencies accordingly. In effect, the statement said that the President may order executive agencies not to comply with a congressional directive requiring them to report instances in which they have been ordered not to comply.

This absurd result highlights the purpose of our first clause, and underscores the reason we so strongly oppose such use of signing statements as “contrary to the rule of law and our constitutional system of separation of powers.”

E.  Legislation Is Needed To Provide For Judicial Review

Of Presidential Signing Statements In Appropriate Cases

The final Recommendation of the Task Force addresses the question of how Congress should respond if a President insists on signing statements that declare his intent to refuse to enforce provisions of a bill he has signed into law because of his belief that they are unconstitutional.

At present, the standing element of the “case or controversy” requirement of Article III of the Constitution frequently frustrates any attempt to obtain judicial review of such presidential claims of line-item veto authority that trespass on the lawmaking powers of Congress. Congress cannot lessen the case or controversy threshold, but it can dismantle barriers above the constitutional floor.

Currently a plaintiff must allege an individualized concrete injury caused by the defendant as opposed to a generalized grievance about unconstitutional government. Further, the requested judicial relief must be reasonably calculated to redress the injury. For individual plaintiffs, a signing statement might well elude the case or controversy requirement because the immediate injury is to the lawmaking powers of Congress. The President thus becomes the final judge of his own constitutional powers, and he invariably rules in favor of himself.

Therefore, this Recommendation urges Congress to enact legislation that would enable the President, Congress, or other entities to seek judicial review, and contemplates that such legislation would confer on Congress as an institution or its agents (either its own Members or interested private parties as in qui tam actions) standing in any instance in which the President uses a signing statement to claim the authority, or state the intention, to disregard or decline to enforce all or part of a law, or interpret such a law in a manner inconsistent with the clear intent of Congress.

If such review were initiated by the Congress or other entities, it could be argued that the concrete injury was the usurpation of the lawmaking powers of Congress by virtue of the provisions of the signing statement, and the denial of the opportunity to override a veto if the President believes a law is unconstitutional. As noted above, however, our recommendation also contemplates that the President could initiate such judicial review.

The remedy fashioned could be an order directing that the enacted law be fully enforced, since the President would have foregone the opportunity for a veto by signing of the bill, or it could be a more general declaratory judgment that the President may not use signing statements in such a manner, but must either enforce a bill which he signs into law or exercise his veto on any bill he believes is unconstitutional in whole or in part. It is to be hoped that the President would obey any constitutional declaration of the Supreme Court.

This Recommendation also urges Congress and the President to support judicial resolution of the President’s claim or interpretation through the use of signing statements, for example, by avoiding non-constitutional arguments like the political question doctrine or prudential standing. It would be expected that one case before the Supreme Court would put to rest the constitutionality of a signing statement that announces the President’s intent not to enforce a provision of a law or to do so in a manner contradictory to clear congressional intent.

As noted above, the Task Force recognizes that legislation providing for judicial review of signing statements would have to overcome constitutional and legal hurdles, and the ABA stands ready to work with Congress on these issues. We also recognize that such legislation could be rejected by the Supreme Court. However, it would still have been worth the undertaking, since it would demonstrate an eagerness to play by constitutional rules short of impeachment, and the use of signing statements in the manner opposed by our recommendations presents a critically important separation of powers issue.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

[This case arose out of a New Deal era federal law that regulated the sale of chickens in interstate commerce (this was one of the early cases that applied the now abandoned "stream of commerce" approach to the Commerce Clause). As with other laws in this era, it allowed the federal government to establish industry practices, in this case as "live poultry code," in order to stabilize commercial markets, including setting minimum wages and maximum hours for industry employees as well as imposing other regulations such as the prohibition of "unfair competition." The defendants were all convicted of violating various provisions of the poultry code and argued that the law was unconstitutional on several grounds. For our purposes here, the relevant part of their arguments focused on the fact that the law delegated to the President the power to establish the details of the code.]

The 'Live Poultry Code' was promulgated under section 3 of the National Industrial Recovery Act.

That section authorizes the President to approve 'codes of fair competition.'

The 'Live Poultry Code' was approved by the President on April 13, 1934.

The code is established as 'a code for fair competition for the live poultry industry of the metropolitan area in and about the City of New York.'

The Question of the Delegation of Legislative Power.—We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. Panama Refining Company v. Ryan, 293 U.S. 388. The Constitution provides that ‘All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ Article 1, s 1. And the Congress is authorized ‘To make all Laws which shall be necessary and proper for carrying into Execution’ its general powers. Article 1, s 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting legislation to complex conditions involving a host of details with which the national Legislature cannot deal directly. We pointed out in the Panama Refining Company Case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.

As to the ‘codes of fair competition,’ under section 3 of the act, the question is more fundamental. It is whether there is any adequate definition of the subject to which the codes are to be addressed.

What is meant by ‘fair competition’ as the term is used in the act? Does it refer to a category established in the law, and is the authority to make codes limited accordingly? Or is it used as a convenient designation for whatever set of laws the formulators of a code for a particular trade or industry may propose and the President may approve (subject to certain restrictions), or the President may himself prescribe, as being wise and beneficient provisions for the government of the trade or industry in order to accomplish the broad purposes of rehabilitation, correction, and expansion which are stated in the first section of title 1?

The question, then, turns upon the authority which section 3 of the Recovery Act vests in the President to approve or prescribe. If the codes have standing as penal statutes, this must be due to the effect of the executive action. But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.

[The Court then examined the statute and determined that it did not sufficiently constrain the President's discretion in establishing the code, which might have saved the law from invalidation because Congress would have retained the power to make the law.]

The act provides for the creation by the President of administrative agencies to assist him, but the action or reports of such agencies, or of his other assistants—their recommendations and findings in relation to the making of codes—have no sanction beyond the will of the President, who may accept, modify, or reject them as he pleases. Such recommendations or findings in no way limit the authority which section 3 undertakes to vest in the President with no other conditions than those there specified. And this authority relates to a host of different trades and industries, thus extending the President's discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country.

To summarize and conclude upon this point: Section 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry, or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described in section 1. In view of the scope of that broad declaration and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.

Justice KAGAN announced the judgment of the Court and delivered an opinion, in which Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join.

The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. § 20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not. Under § 20913(d), the Attorney General must apply SORNA's registration requirements as soon as feasible to offenders convicted before the statute's enactment. That delegation easily passes constitutional muster.

Congress has sought, for the past quarter century, to combat sex crimes and crimes against children through sex-offender registration schemes. In 1994, Congress first conditioned certain federal funds on States' adoption of registration laws meeting prescribed minimum standards. Two years later, Congress strengthened those standards, most notably by insisting that States inform local communities of registrants' addresses. By that time, every State and the District of Columbia had enacted a sex-offender registration law. But the state statutes varied along many dimensions, and Congress came to realize that their “loopholes and deficiencies” had allowed over 100,000 sex offenders (about 20% of the total) to escape registration. In 2006, to address those failings, Congress enacted SORNA.

SORNA makes “more uniform and effective” the prior “patchwork” of sex-offender registration systems. The Act's express “purpose” is “to protect the public from sex offenders and offenders against children” by “establish[ing] a comprehensive national system for [their] registration.” To that end, SORNA covers more sex offenders, and imposes more onerous registration requirements, than most States had before. The Act also backs up those requirements with new criminal penalties. Any person required to register under SORNA who knowingly fails to do so (and who travels in interstate commerce) may be imprisoned for up to ten years.

The basic registration scheme works as follows. A “sex offender” is defined as “an individual who was convicted of” specified criminal offenses: all offenses “involving a sexual act or sexual contact” and additional offenses “against a minor.” Such an individual must register—provide his name, address, and certain other information—in every State where he resides, works, or studies. And he must keep the registration current, and periodically report in person to a law enforcement office, for a period of between fifteen years and life (depending on the severity of his crime and his history of recidivism).

Section 20913—the disputed provision here—elaborates the “[i]nitial registration” requirements for sex offenders. Subsection (b) sets out the general rule: An offender must register “before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement” (or, if the offender is not sentenced to prison, “not later than [three] business days after being sentenced”). Two provisions down, subsection (d) addresses (in its title's words) the “[i]nitial registration of sex offenders unable to comply with subsection (b).” The provision states:

“The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).”

Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA's enactment—a group we will call pre-Act offenders. Many of these individuals were unregistered at the time of SORNA's enactment, either because pre-existing law did not cover them or because they had successfully evaded that law (so were “lost” to the system). And of those potential new registrants, many or most could not comply with subsection (b)'s registration rule because they had already completed their prison sentences. For the entire group of pre-Act offenders, once again, the Attorney General “shall have the authority” to “specify the applicability” of SORNA's registration requirements and “to prescribe rules for [their] registration.”

Under that delegated authority, the Attorney General issued an interim rule in February 2007, specifying that SORNA's registration requirements apply in full to “sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. That rule has remained the same to this day.

Petitioner Herman Gundy is a pre-Act offender. The year before SORNA's enactment, he pleaded guilty under Maryland law for sexually assaulting a minor. After his release from prison in 2012, Gundy came to live in New York. But he never registered there as a sex offender. A few years later, he was convicted for failing to register, in violation of § 2250. He argued below (among other things) that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA's registration requirements to pre-Act offenders.

Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” § 1. Accompanying that assignment of power to Congress is a bar on its further delegation. Congress, this Court explained early on, may not transfer to another branch “powers which are strictly and exclusively legislative.” But the Constitution does not “deny[ ] to the Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s].” Congress may “obtain[ ] the assistance of its coordinate Branches”—and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws. “[I]n our increasingly complex society, replete with ever changing and more technical problems,” this Court has understood that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” So we have held, time and again, that a statutory delegation is constitutional as long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides. Only after a court has determined a challenged statute's meaning can it decide whether the law sufficiently guides executive discretion to accord with Article I. And indeed, once a court interprets the statute, it may find that the constitutional question all but answers itself.

That is the case here, because § 20913(d) does not give the Attorney General anything like the “unguided” and “unchecked” authority that Gundy says. The provision, in Gundy's view, “grants the Attorney General plenary power to determine SORNA's applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time.” If that were so, we would face a nondelegation question. But it is not. This Court has already interpreted § 20913(d) to say something different—to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible. And revisiting that issue yet more fully today, we reach the same conclusion. The text, considered alongside its context, purpose, and history, makes clear that the Attorney General's discretion extends only to considering and addressing feasibility issues.

Given that statutory meaning, Gundy's constitutional claim must fail. Section 20913(d)'s delegation falls well within permissible bounds.

Recall again the delegation provision at issue. Congress gave the Attorney General authority to “specify the applicability” of SORNA's requirements to pre-Act offenders. § 20913(d). And in the second half of the same sentence, Congress gave him authority to “prescribe rules for the registration of any such sex offenders ... who are unable to comply with” subsection (b)'s initial registration requirement. What does the delegation in § 20913(d) allow the Attorney General to do?

[Gundy argued that the statute delegated to the Attorney General the complete discretion to determine how the sex offender registration law should apply to pre-Act offenders. The Court rejected that interpretation, concluding instead that the statute substantially limited the scope of the Attorney General's discretion.]

Now that we have determined what § 20913(d) means, we can consider whether it violates the Constitution. The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA's registration requirements to pre-Act offenders as soon as feasible? Under this Court's long-established law, that question is easy. Its answer is no.

As noted earlier, this Court has held that a delegation is constitutional so long as Congress has set out an “intelligible principle” to guide the delegee's exercise of authority. Or in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the delegee “the general policy” he must pursue and the “boundaries of [his] authority.” Those standards, the Court has made clear, are not demanding. “[W]e have ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’” Only twice in this country's history (and that in a single year) have we found a delegation excessive—in each case because “Congress had failed to articulate any policy or standard” to confine discretion. see A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the “public interest.” We have sustained authorizations for agencies to set “fair and equitable” prices and “just and reasonable” rates. We more recently affirmed a delegation to an agency to issue whatever air quality standards are “requisite to protect the public health.” And so forth.

In that context, the delegation in SORNA easily passes muster. The statute conveyed Congress's policy that the Attorney General require pre-Act offenders to register as soon as feasible. Under the law, the feasibility issues he could address were administrative—and, more specifically, transitional—in nature. Those issues arose from the need to “newly register[ ] or reregister[ ] ‘a large number’ of pre-Act offenders” not then in the system. And they arose, more technically, from the gap between an initial registration requirement hinged on imprisonment and a set of pre-Act offenders long since released. Even for those limited matters, the Act informed the Attorney General that he did not have forever to work things out. By stating its demand for a “comprehensive” registration system and by defining the “sex offenders” required to register to include pre-Act offenders, Congress conveyed that the Attorney General had only temporary authority. That statutory authority, as compared to the delegations we have upheld in the past, is distinctly small-bore. It falls well within constitutional bounds.

Indeed, if SORNA's delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs. Consider again this Court's long-time recognition: “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Or as the dissent in that case agreed: “[S]ome judgments ... must be left to the officers executing the law.” Among the judgments often left to executive officials are ones involving feasibility. In fact, standards of that kind are ubiquitous in the U.S. Code. In those delegations, Congress gives its delegee the flexibility to deal with real-world constraints in carrying out his charge. So too in SORNA.

It is wisdom and humility alike that this Court has always upheld such “necessities of government."

Chief Justice BURGER delivered the opinion of the Court.

[These cases raise the question whether] § 244(c)(2) of the Immigration and Nationality Act, authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States.

Chadha is an East Indian who was born in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service ordered Chadha to show cause why he should not be deported for having “remained in the United States for a longer time than permitted.” Pursuant to § 242(b) of the Immigration and Nationality Act (Act), a deportation hearing was held before an immigration judge on January 11, 1974. Chadha conceded that he was deportable for overstaying his visa and the hearing was adjourned to enable him to file an application for suspension of deportation under § 244(a)(1) of the Act. [That section allows for the suspension of a deportation order where the deported person would suffer "extreme hardship" as a result.]

After Chadha submitted his application for suspension of deportation, the deportation hearing was resumed on February 7, 1974. On the basis of evidence adduced at the hearing, affidavits submitted with the application, and the results of a character investigation conducted by the INS, the immigration judge, on June 25, 1974, ordered that Chadha's deportation be suspended. The immigration judge found that Chadha met the requirements of § 244(a)(1): he had resided continuously in the United States for over seven years, was of good moral character, and would suffer “extreme hardship” if deported.

Pursuant to § 244(c)(1) of the Act, the immigration judge suspended Chadha's deportation and a report of the suspension was transmitted to Congress.

Once the Attorney General's recommendation for suspension of Chadha's deportation was conveyed to Congress, Congress had the power under § 244(c)(2) of the Act, to veto the Attorney General's determination that Chadha should not be deported.

The June 25, 1974 order of the immigration judge suspending Chadha's deportation remained outstanding as a valid order for a year and a half. For reasons not disclosed by the record, Congress did not exercise the veto authority reserved to it under § 244(c)(2) until the first session of the 94th Congress.

On December 12, 1975, Representative Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing “the granting of permanent residence in the United States to [six] aliens”, including Chadha. The resolution was referred to the House Committee on the Judiciary. On December 16, 1975, the resolution was discharged from further consideration by the House Committee on the Judiciary and submitted to the House of Representatives for a vote. The resolution had not been printed and was not made available to other Members of the House prior to or at the time it was voted on. So far as the record before us shows, the House consideration of the resolution was based on Representative Eilberg's statement from the floor that

“[i]t was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution [Chadha and five others] did not meet these statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended.”

The resolution was passed without debate or recorded vote. Since the House action was pursuant to § 244(c)(2), the resolution was not treated as an Article I legislative act; it was not submitted to the Senate or presented to the President for his action.

After the House veto of the Attorney General's decision to allow Chadha to remain in the United States, the immigration judge reopened the deportation proceedings to implement the House order deporting Chadha. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional. [The case then proceeded through administrative proceedings, which were then appealed within the federal court system].

We turn now to the question whether action of one House of Congress under § 244(c)(2) violates strictures of the Constitution. We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained.

By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government and our inquiry is sharpened rather than blunted by the fact that Congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies:

“Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940–49, nineteen statutes; between 1950–59, thirty-four statutes; and from 1960–69, forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such provisions were included in eighty-nine laws.”

Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those familiar provisions are critical to the resolution of this case, we set them out verbatim. Art. I provides: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” Art. I, § 1. (Emphasis added).

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; ...” Art. I, § 7, cl. 2. (Emphasis added).

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.” Art. I, § 7, cl. 3. (Emphasis added).

These provisions of Art. I are integral parts of the constitutional design for the separation of powers. The very structure of the articles delegating and separating powers under Arts. I, II, and III exemplify the concept of separation of powers and we now turn to Art. I.

The Presentment Clauses

The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers. Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented.

The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President.

The President's role in the lawmaking process also reflects the Framers' careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures.

Bicameralism

The bicameral requirement of Art. I, §§ 1, 7 was of scarcely less concern to the Framers than was the Presidential veto and indeed the two concepts are interdependent. By providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already remarked upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully considered by the Nation's elected officials.

However familiar, it is useful to recall that apart from their fear that special interests could be favored at the expense of public needs, the Framers were also concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; representatives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people. It need hardly be repeated here that the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states.

We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The President's participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The President's unilateral veto power, in turn, was limited by the power of two thirds of both Houses of Congress to overrule a veto thereby precluding final arbitrary action of one person. It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7 represents the Framers' decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.

[But] [n]ot every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon “whether they contain matter which is properly to be regarded as legislative in its character and effect.”

Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4 to “establish an uniform Rule of Naturalization,” the House took action that had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch. Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be cancelled under § 244. The one-House veto operated in this case to overrule the Attorney General and mandate Chadha's deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha's status.

The legislative character of the one-House veto in this case is confirmed by the character of the Congressional action it supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively delegated authority, had determined the alien should remain in the United States.

The nature of the decision implemented by the one-House veto in this case further manifests its legislative character. After long experience with the clumsy, time consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Disagreement with the Attorney General's decision on Chadha's deportation—that is, Congress' decision to deport Chadha—no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.

Finally, we see that when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action. There are but four provisions in the Constitution, explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the President's veto:

(a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 6;

(b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 5;

(c) The Senate alone was given final unreviewable power to approve or to disapprove presidential appointments. Art. II, § 2, cl. 2;

(d) The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2.

Clearly, when the Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms. These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here.

Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Article I. The bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President.

Justice POWELL, concurring in the judgment.

The Court's decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use of the legislative veto. The breadth of this holding gives one pause. Congress has included the veto in literally hundreds of statutes, dating back to the 1930s. Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies. In my view, the case may be decided on a narrower ground. When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country it has assumed a judicial function in violation of the principle of separation of powers. Accordingly, I concur only in the judgment.

Justice WHITE, dissenting.

Today the Court not only invalidates § 244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a “legislative veto.” For this reason, the Court's decision is of surpassing importance. And it is for this reason that the Court would have been well-advised to decide the case, if possible, on the narrower grounds of separation of powers, leaving for full consideration the constitutionality of other congressional review statutes operating on such varied matters as war powers and agency rulemaking, some of which concern the independent regulatory agencies.

The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the executive branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes. The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment and the economy.

The legislative veto developed initially in response to the problems of reorganizing the sprawling government structure created in response to the Depression. [Justice White then proceeded to describe the extensive use of the legislative veto from the New Deal era to the present]

Even this brief review suffices to demonstrate that the legislative veto is more than “efficient, convenient, and useful.” It is an important if not indispensable political invention that allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and preserves Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory.

The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches—the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Article I as the nation's lawmaker. While the President has often objected to particular legislative vetoes, generally those left in the hands of congressional committees, the Executive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the President may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority.

For all these reasons, the apparent sweep of the Court's decision today is regrettable. The Court's Article I analysis appears to invalidate all legislative vetoes irrespective of form or subject. Because the legislative veto is commonly found as a check upon rulemaking by administrative agencies and upon broad-based policy decisions of the Executive Branch, it is particularly unfortunate that the Court reaches its decision in a case involving the exercise of a veto over deportation decisions regarding particular individuals.

The Constitution does not directly authorize or prohibit the legislative veto. Thus, our task should be to determine whether the legislative veto is consistent with the purposes of Art. I and the principles of Separation of Powers which are reflected in that Article and throughout the Constitution. We should not find the lack of a specific constitutional authorization for the legislative veto surprising, and I would not infer disapproval of the mechanism from its absence. From the summer of 1787 to the present the government of the United States has become an endeavor far beyond the contemplation of the Framers. Only within the last half century has the complexity and size of the Federal Government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective if not the only means to insure their role as the nation's lawmakers. But the wisdom of the Framers was to anticipate that the nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles.

The power to exercise a legislative veto is not the power to write new law without bicameral approval or presidential consideration. The veto must be authorized by statute and may only negative what an Executive department or independent agency has proposed. On its face, the legislative veto no more allows one House of Congress to make law than does the presidential veto confer such power upon the President.

The Court's holding today that all legislative-type action must be enacted through the lawmaking process ignores that legislative authority is routinely delegated to the Executive branch, to the independent regulatory agencies, and to private individuals and groups. “The rise of administrative bodies probably has been the most significant legal trend of the last century.... They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories ...” Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J. dissenting).

This Court's decisions sanctioning such delegations make clear that Article I does not require all action with the effect of legislation to be passed as a law. The wisdom and the constitutionality of these broad delegations are matters that still have not been put to rest. But for present purposes, these cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law—the substantive rules that regulate private conduct and direct the operation of government—made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.

If Congress may delegate lawmaking power to independent and executive agencies, it is most difficult to understand Article I as forbidding Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. In both cases, it is enough that the initial statutory authorizations comply with the Article I requirements.

The central concern of the presentation and bicameralism requirements of Article I is that when a departure from the legal status quo is undertaken, it is done with the approval of the President and both Houses of Congress—or, in the event of a presidential veto, a two-thirds majority in both Houses. This interest is fully satisfied by the operation of § 244(c)(2). The President's approval is found in the Attorney General's action in recommending to Congress that the deportation order for a given alien be suspended. The House and the Senate indicate their approval of the Executive's action by not passing a resolution of disapproval within the statutory period. Thus, a change in the legal status quo—the deportability of the alien—is consummated only with the approval of each of the three relevant actors. The disagreement of any one of the three maintains the alien's pre-existing status: the Executive may choose not to recommend suspension; the House and Senate may each veto the recommendation. The effect on the rights and obligations of the affected individuals and upon the legislative system is precisely the same as if a private bill were introduced but failed to receive the necessary approval.

I regret that I am in disagreement with my colleagues on the fundamental questions that this case presents. But even more I regret the destructive scope of the Court's holding. It reflects a profoundly different conception of the Constitution than that held by the Courts which sanctioned the modern administrative state. Today's decision strikes down in one fell swoop provisions in more laws enacted by Congress than the Court has cumulatively invalidated in its history.

Chief Justice REHNQUIST delivered the opinion of the Court.

This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978. We hold today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of separation of powers.

Briefly stated, Title VI of the Ethics in Government Act allows for the appointment of an “independent counsel” to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws. The Act requires the Attorney General, upon receipt of information that he determines is “sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law,” to conduct a preliminary investigation of the matter. When the Attorney General has completed this investigation, or 90 days has elapsed, he is required to report to a special court (the Special Division) [made up of Art. III judges] created by the Act “for the purpose of appointing independent counsels.” If the Attorney General determines that “there are no reasonable grounds to believe that further investigation is warranted,” then he must notify the Special Division of this result. In such a case, “the division of the court shall have no power to appoint an independent counsel.” If, however, the Attorney General has determined that there are “reasonable grounds to believe that further investigation or prosecution is warranted,” then he “shall apply to the division of the court for the appointment of an independent counsel.” The Attorney General's application to the court “shall contain sufficient information to assist the [court] in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction.” Upon receiving this application, the Special Division “shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction.”

With respect to all matters within the independent counsel's jurisdiction, the Act grants the counsel “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice.” Under [the Act], the counsel's powers include “initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States.” In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney General and the Justice Department are required to suspend all investigations and proceedings regarding the matter.

The proceedings in this case provide an example of how the Act works in practice. In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency (EPA) to produce certain documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the “Superfund Law.” At that time, appellee Olson was the Assistant Attorney General for the Office of Legal Counsel (OLC), appellee Schmults was Deputy Attorney General, and appellee Dinkins was the Assistant Attorney General for the Land and Natural Resources Division. Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained “enforcement sensitive information.” The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited access to the documents.

The following year, the House Judiciary Committee began an investigation into the Justice Department's role in the controversy over the EPA documents.

During this investigation, appellee Olson testified before a House Subcommittee. In 1985, the majority members of the Judiciary Committee published a lengthy report on the Committee's investigation. The report not only criticized various officials in the Department of Justice for their role in the EPA executive privilege dispute, but it also suggested that appellee Olson had given false and misleading testimony to the Subcommittee. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request, pursuant to 28 U.S.C. § 592(c), that he seek the appointment of an independent counsel.

The Appointments Clause of Article II reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

U.S. Const., Art. II, § 2, cl. 2.

The parties do not dispute that “[t]he Constitution for purposes of appointment ... divides all its officers into two classes.” “[P]rincipal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” The initial question is, accordingly, whether appellant is an “inferior” or a “principal” officer. If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause.

The line between “inferior” and “principal” officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the “inferior officer” side of that line. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be “subordinate” to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree “inferior” in rank and authority.

Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,” but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department.

Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General.

Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the “ideas of tenure, duration ... and duties” of the independent counsel, are sufficient to establish that appellant is an “inferior” officer in the constitutional sense.

This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an “inferior” officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of “interbranch appointments,” in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: “... but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.” On its face, the language of this “excepting clause” admits of no limitation on interbranch appointments. Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of Law.”

The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. On the other hand, we have never held that the Constitution requires that the three branches of Government “operate with absolute independence.”

In the often-quoted words of Justice Jackson:

“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (concurring opinion).

We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Unlike some of our previous cases, this case simply does not pose a “dange[r] of congressional usurpation of Executive Branch functions.” Indeed, with the exception of the power of impeachment—which applies to all officers of the United States—Congress retained for itself no powers of control or supervision over an independent counsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. Other than that, Congress' role under the Act is limited to receiving reports or other information and oversight of the independent counsel's activities, functions that we have recognized generally as being incidental to the legislative function of Congress.

Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to appoint inferior officers such as independent counsel is not in itself an “executive” function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the “courts of Law.” We note nonetheless that under the Act the Special Division has no power to appoint an independent counsel sua sponte; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment. In addition, once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel.

Justice SCALIA, dissenting.

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government.

The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51, pp. 321–322.

[W]hile “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” U.S. Const., Art. I, § 1 (emphasis added), “[t]he executive Power shall be vested in a President of the United States,” Art. II, § 1, cl. 1 (emphasis added).

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

To repeat, Article II, § 1, cl. 1, of the Constitution provides:

“The executive Power shall be vested in a President of the United States.”

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. [This case comes down to two questions] (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

The Court concedes that “[t]here is no real dispute that the functions performed by the independent counsel are ‘executive’,” though it qualifies that concession by adding “in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.” The qualifier adds nothing but atmosphere. In what other sense can one identify “the executive Power” that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere—if conducted by government at all—been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She is vested with the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General.” Governmental investigation and prosecution of crimes is a quintessentially executive function.

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control. “Most importan[t]” among these controls, the Court asserts, is the Attorney General's “power to remove the counsel for ‘good cause.’” This is somewhat like referring to shackles as an effective means of locomotion.

The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was “so central to the functioning of the Legislative Branch” as really to require complete control, or whether the statute gives Congress “sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties”? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress.

Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts—perhaps “clear error” review, which would be a fair judicial equivalent of the Attorney General's “for cause” removal power here. Is there any doubt that we would not pause to inquire whether the matter was “so central to the functioning of the Judicial Branch” as really to require complete control, or whether we retained “sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties”? We would say that our “constitutionally assigned duties” include complete control over all exercises of the judicial power.

We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, “[i]t is a truism that constitutional protections have costs.” While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.

The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.

Nothing in the Constitution's text specifically refers to the President's power to remove federal officials from office. In fact, the only part of the Constitution that contemplates removal is the Impeachment Clause. To those who believe in the unitary executive power, all officials in the executive branch work for the President and should be removable at the President's will. This is indisputably the case with regard to the President's highest ranked and closest advisors, such as Secretaries serving in the Cabinet (e.g., the Secretary of State). The inability to remove such an official who works so closely with the President could compromise Presidents' ability to carry out their duties. But Congress has from time to time tried to limit the President's removal powers to ensure that some officials have some political independence from the President, particularly if their roles are ones that might be politically controversial. Two early cases set the general parameters of the Court's interpretation of the removal powers. The following are brief excerpts from those cases.

* * *

Myers v. United States, 272 U.S. 52 (1926)

[The President tried to fire Myers, a regional postmaster, who had been appointed to serve a four year term. Myers died, but his estate brought a claim for the unpaid salary of his unfinished term in office. A federal statute prohibited the removal of people in Myers's position without the advice and consent of the Senate, which had not been given. On that ground, Myers's estate contested his removal.]

Mr. Chief Justice TAFT delivered the opinion of the Court.

There is no express provision respecting removals in the Constitution, except as section 4 of article 2, above quoted, provides for removal from office by impeachment. The subject was not discussed in the Constitutional Convention.

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court.

As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. It was urged that the natural meaning of the term ‘executive power’ granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly were not the exercise of legislative or judicial power in government as usually understood.

[During the First Congress, it was clear that] [t]he view of Mr. [James] Madison and his associates was that not only did the grant of executive power to the President in the first section of article 2 carry with it the power of removal, but the express recognition of the power of appointment in the second section enforced this view on the well-approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment. . . This principle as a rule of constitutional and statutory construction, then generally conceded, has been recognized ever since. The reason for the principle is that those in charge of and responsible for administering functions of government, who select their executive subordinates, need in meeting their responsibility to have the power to remove those whom they appoint.

The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power. The authority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove.

Our conclusion on the merits, sustained by the arguments before stated, is that article 2 grants to the President the executive power of the government-i,e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers-a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article 2 excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of article 2, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed, and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and, finally, that to hold otherwise would make it impossible for the President, in case of political or other difference with the Senate or Congress, to take care that the laws be faithfully executed.

* * *

Humphrey's Executor v. United States, 295 U.S. 602 (1935)

[Humphrey was appointed by the President Hoover to serve a seven year term as a Commissioner on the Federal Trade Commission. The FTC's responsibilities included enforcing the nation's antitrust laws against large corporations. Later, President Roosevelt removed Humphrey from his position so that he could appoint someone else who was more in line with Roosevelt's vision of how the FTC should operate. Like Myers, Humphrey died, but his estate continued a suit for the salary he lost from having not completed his term. The FTC Act specifically stated that "any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." President Roosevelt argued that Congress could not impose this type of limitation on his power to remove an official of the U.S. and that he should be able to remove an FTC Commissioner for any reason.]

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The commission is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi judicial and quasi legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’

[T]he language of the [FTC] act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the congressional intent to create a body of experts who shall gain experience by length of service; a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government. To the accomplishment of these purposes, it is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.

We conclude that the intent of the act is to limit the executive power of removal to the causes enumerated, the existence of none of which is claimed here; and we pass to the second question.

To support its contention that the removal provision of section 1, as we have just construed it, is an unconstitutional interference with the executive power of the President, the government's chief reliance is Myers v. United States, 272 U.S. 52.

The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers Case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers Case finds support in the theory that such an officer is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of ‘unfair methods of competition,’ that is to say, in filling in and administering the details embodied by that general standard, the commission acts in part quasi legislatively and in part quasi judicially. In making investigations and reports thereon for the information of Congress under section 6, in aid of the legislative power, it acts as a legislative agency. Under section 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function, as distinguished from executive power in the constitutional sense, it does so in the discharge and effectuation of its quasi legislative or quasi judicial powers, or as an agency of the legislative or judicial departments of the government.

We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.

The power of removal here claimed for the President falls within [the principle of separation of powers] since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments.

The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.

[In a separate part of the Morrison opinion, the Court examined whether the provisions allowing for the removal of the independent counsel violated the Constitution]

Section 596(a)(1) provides:

“An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.”

If an independent counsel is removed pursuant to this section, the Attorney General is required to submit a report to both the Special Division and the Judiciary Committees of the Senate and the House “specifying the facts found and the ultimate grounds for such removal.” Under the current version of the Act, an independent counsel can obtain judicial review of the Attorney General's action by filing a civil action in the United States District Court for the District of Columbia. Members of the Special Division “may not hear or determine any such civil action or any appeal of a decision in any such civil action.” The reviewing court is authorized to grant reinstatement or “other appropriate relief.” . . .

We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. [One issue we must address] is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show “good cause,” taken by itself, impermissibly interferes with the President's exercise of his constitutionally appointed functions.

Two Terms ago we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be “executive powers.” Bowsher v. Synar, 478 U.S. 714, 730 (1986). We held in Bowsher that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U.S. 52 (1926). Myers had considered the propriety of a federal statute by which certain postmasters of the United States could be removed by the President only “by and with the advice and consent of the Senate.” There too, Congress' attempt to involve itself in the removal of an executive official was found to be sufficient grounds to render the statute invalid. As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from “draw[ing] to itself ... the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers.”

Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.” There is no requirement of congressional approval of the Attorney General's removal decision, though the decision is subject to judicial review. In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, 295 U.S. 602 (1935) than to Myers or Bowsher.

In Humphrey's Executor, the issue was whether a statute restricting the President's power to remove the Commissioners of the Federal Trade Commission (FTC) only for “inefficiency, neglect of duty, or malfeasance in office” was consistent with the Constitution. We stated that whether Congress can “condition the [President's power of removal] by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office.” Contrary to the implication of some dicta in Myers, the President's power to remove Government officials simply was not “all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution.” At least in regard to “quasi-legislative” and “quasi-judicial” agencies such as the FTC, “[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties independently of executive control ... includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.” In Humphrey's Executor, we found it “plain” that the Constitution did not give the President “illimitable power of removal” over the officers of independent agencies. Were the President to have the power to remove FTC Commissioners at will, the “coercive influence” of the removal power would “threate[n] the independence of [the] commission.” 

Appellees contend that Humphrey's Executor and [other precedents] are distinguishable from this case because they did not involve officials who performed a “core executive function.” They argue that our decision in Humphrey's Executor rests on a distinction between “purely executive” officials and officials who exercise “quasi-legislative” and “quasi-judicial” powers. In their view, when a “purely executive” official is involved, the governing precedent is Myers, not Humphrey's Executor. And, under Myers, the President must have absolute discretion to discharge “purely” executive officials at will.

We undoubtedly did rely on the terms “quasi-legislative” and “quasi-judicial” to distinguish the officials involved in Humphrey's Executor from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a “good cause”-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as “purely executive.” The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the “executive power” and his constitutionally appointed duty to “take care that the laws be faithfully executed” under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some “purely executive” officials who must be removable by the President at will if he is to be able to accomplish his constitutional role.

At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor and Wiener as “quasi-legislative” or “quasi-judicial” in large part reflected our judgment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act. Although we need not decide in this case exactly what is encompassed within the term “good cause” under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for “misconduct.” Here, as with the provision of the Act conferring the appointment authority of the independent counsel on the special court, the congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office. We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.

[This was an emergency docket order (that is, not a fully briefed case on the merits) relating to two separate cases challenging President Trump’s decision to remove a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), both independent agencies under federal statutes. In both cases, the federal district court enjoined the firings after concluding they violated the federal statutes governing these Boards. After some additional lower court proceedings, the Trump Administration filed a motion for a stay of the injunctions, and Chief Justice Roberts granted a stay pending further order. Justice Kagan's dissent argues that this stay effectively overrules Humphrey's Executor. In the current term, on the regular docket, the Court is directly considering whether to overrule Humphrey's Executor in Trump v. Slaughter, No. 25-332, which was argued before the Court on December 8, 2025. A decision in that case is expected by the end of the current term.]

The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President’s removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given. See 29 U. S. C. § 153(a); 5 U. S. C. § 1202(d).

The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, § 1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents. The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation. 

Justice KAGAN, with whom Justice SOTOMAYOR and Justice JACKSON join, dissenting from the grant of the application for stay.

For 90 years, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey’s makes clear, creates no conflict with the Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with “the executive power,” the Humphrey’s Court held that Congress has authority, in creating such “quasi-legislative or quasi-judicial” bodies, to “forbid their [members’] removal except for cause.” Id., at 626, 629. Indeed, that conclusion “cannot well be doubted.” Id., at 629.

The current President believes that Humphrey’s should be either overruled or confined. . . And he has chosen to act on that belief—really, to take the law into his own hands. Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency—a multi-member, bipartisan commission exercising regulatory power whose governing statute contains a for-cause provision. Yet now the President has discharged, concededly without cause, several such officers, including a member of the NLRB and a member of the MSPB. Today, this Court effectively blesses those deeds. I would not. Our Humphrey’s decision remains good law, and it forecloses both the President’s firings and the Court’s decision to award emergency relief.

Our emergency docket, while fit for some things, should not be used to overrule or revise existing law. We consider emergency applications “on a short fuse without benefit of full briefing and oral argument”; and we resolve them without fully (or at all) stating our reasons. It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law. And nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.

[T]o fire [these officials], the President—under existing law—needs good cause, which he admits he does not have. The only way out of that box is to upend Humphrey’s.

For that reason, the majority’s order granting the President’s request for a stay is nothing short of extraordinary. That order consents to the President’s (statutorily barred) removal of the NLRB and MSPB Commissioners, at least until we decide their suits on the merits. And so the order allows the President to overrule Humphrey’s by fiat, again pending our eventual review. This Court often reminds other judges that if one of our precedents “has direct application in a case,” they must follow it, even if they dislike it—“leaving to this Court the prerogative of overruling its own decisions.” It should go without saying that the President must likewise follow existing precedent, however strong he thinks the arguments against it—unless and until he convinces us to reject what we previously held. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey’s, betting that this Court would acquiesce. And the majority today obliges—without so much as mentioning Humphrey’s.

Respectfully, I dissent.

Justice O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice KENNEDY, and Justice BREYER join.

At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an “enemy combatant.” [There is also an issue in the case whether detainees are entitled to due process to contest their classification as enemy combatants; the majority held that they were, but that issue is not relevant to our study of executive powers in this Module]

On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these “acts of treacherous violence,” Congress passed a resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF), Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.

This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely—without formal charges or proceedings—unless and until it makes the determination that access to counsel or further process is warranted.

The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “ ‘part of or supporting forces hostile to the United States or coalition partners' ” in Afghanistan and who “ ‘engaged in an armed conflict against the United States'” there. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF.

Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi's principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U.S.C. § 4001(a). Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Congress passed § 4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese-American internment camps of World War II.

The Government again presses two alternative positions. First, it argues that § 4001(a), in light of its legislative history and its location in Title 18, applies only to “the control of civilian prisons and related detentions,” not to military detentions. Second, it maintains that § 4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”—the AUMF. Again, because we conclude that the Government's second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that **2640 the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied § 4001(a)'s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that § 4001(a) applies to military detentions).

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.

It is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

Justice SOUTER, with whom Justice GINSBURG joins, concurring in part, dissenting in part, and concurring in the judgment.

According to Yaser Hamdi's petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an “enemy combatant,” the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him. The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.

The plurality does [accepts] the Government's position that if Hamdi's designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by § 4001(a), that is, by the Authorization for Use of Military Force. I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non–Detention Act entitles Hamdi to be released.

The Government's first response to Hamdi's claim that holding him violates § 4001(a), prohibiting detention of citizens “except pursuant to an Act of Congress,” is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, the Force Resolution, passed after the attacks of 2001 [authorizes Hamdi's detention]. At the same time, the Government argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.

The threshold issue is how broadly or narrowly to read the Non–Detention Act, the tone of which is severe: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Should the severity of the Act be relieved when the Government's stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act “pursuant” to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, the answer has to be no. For a number of reasons, the prohibition within § 4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.

First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950, which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U.S. 214 (1944).

The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us § 4001(a) provides a powerful reason to think that § 4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. To appreciate what is most significant, one must only recall that the internments of the 1940s were accomplished by Executive action. [I]nternment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, In requiring that any Executive detention be “pursuant to an Act of Congress,” then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.

Second, when Congress passed § 4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended § 4001(a) to be read accordingly.

[E]ven if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason to read § 4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights.” The Federalist No. 51. Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.

Justice SCALIA, with whom Justice STEVENS joins, dissenting.

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the judgment below.

The very core of liberty secured by our Anglo–Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.

The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared,

“is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.”

The Federalist No. 8.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

[A separate dissent by Justice Thomas, agreeing with the plurality that the President had the power to detain Hamdi, but disagreeing with its conclusion that he was entitled to any kind of due process, has been omitted].

Mr. Chief Justice BURGER delivered the opinion of the Court.

On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator. On April 18, 1974, upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts or other writings relating to certain precisely identified meetings between the President and others.

On May 1, 1974, the President's counsel, filed a ‘special appearance’ and a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a formal claim of privilege.

IV THE CLAIM OF PRIVILEGE

[W]e turn to the claim that the subpoena should be quashed because it demands ‘confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.’  The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. 

Notwithstanding the deference each branch must accord the others, the ‘judicial Power of the United States' vested in the federal courts by Art. III, s 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47. We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is' with respect to the claim of privilege presented in this case. Marbury v. Madison.

In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.

The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.

However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Art. III.

Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President.

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.

But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that ‘the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.’ We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.

No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor. Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

Mr. Justice REHNQUIST took no part in the consideration or decision of these cases.

Chief Justice ROBERTS delivered the opinion of the Court.

This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. We consider the scope of a President’s immunity from criminal prosecution.

I

From January 2017 until January 2021, Donald J. Trump served as President of the United States. On August 1, 2023, a federal grand jury indicted him on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. . .

[Trump was indicted for conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official, and conspiracy against rights. He filed a motion to dismiss the indictments, arguing that he is protected by Presidential immunity. The federal district court denied President Trump’s motion to dismiss and the D.C. Circuit affirmed, both rejecting Trump’s claim of presidential immunity on different theories.].

We granted certiorari to consider the following question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” . . .

II

This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse “the issue of a power’s validity with the cause it is invoked to promote,” but must instead focus on the “enduring consequences upon the balanced power structure of our Republic.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity.

They disagree, however, about whether a former President can be prosecuted for his official actions. Trump contends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, he must be absolutely immune from criminal prosecution for such acts. And Trump argues that the bulk of the indictment’s allegations involve conduct in his official capacity as President. Although the Government agrees that some official actions are included in the indictment’s allegations, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized.

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

 ***

A

Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” § 1, cl. 1. The President’s duties are of “unrivaled gravity and breadth.” They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States. He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. Domestically, he must “take Care that the Laws be faithfully executed,” and he bears responsibility for the actions of the many departments and agencies within the Executive Branch. He also plays a role in lawmaking by recommending to Congress the measures he thinks wise and signing or vetoing the bills Congress passes.

No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” In the latter case, the President’s authority is sometimes “conclusive and preclusive.” When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.” And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution. . .

Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

B

The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority . . . do not extend to conduct in areas where his authority is shared with Congress.

We recognize that only a limited number of our prior decisions guide determination of the President’s immunity in this context. That is because proceedings directly involving a President have been uncommon in our Nation, and “decisions of the Court in this area” have accordingly been “rare” and “episodic.” To resolve the matter, therefore, we look primarily to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents.

The President “occupies a unique position in the constitutional scheme,” as “the only person who alone composes a branch of government.” The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.”

The Framers accordingly vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald, 457 U.S., at 750. He must make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” There accordingly “exists the greatest public interest” in providing the President with “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.”

In Nixon v. Fitzgerald, for instance, we recognized that as “a functionally mandated incident of [his] unique office,” a former President “is entitled to absolute immunity from damages liability predicated on his official acts.” That case involved a terminated Air Force employee who sued former President Richard Nixon for damages, alleging that Nixon approved an Air Force reorganization that wrongfully led to his firing. In holding that Nixon was immune from that suit, “our dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.”

By contrast, when prosecutors have sought evidence from the President, we have consistently rejected Presidential claims of absolute immunity. . .

Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and Nixon. The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald, 457 U.S., at 745. Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.

The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579 U.S. 550, 575 (2016), raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U.S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined.

We must, however, “recognize[ ] the countervailing interests at stake.” Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” There is therefore a compelling “public interest in fair and effective law enforcement.” The President, charged with enforcing federal criminal laws, is not above them. . .

Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. . . .

But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. Because we need not decide that question today, we do not decide it.

C

As for a President’s unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. When Paula Jones brought a civil lawsuit against then-President Bill Clinton for acts he allegedly committed prior to his Presidency, we rejected his argument that he enjoyed temporary immunity from the lawsuit while serving as President. 520 U.S. at 684. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Id., at 694. The “ ‘justifying purposes’ ” of the immunity we recognized in Fitzgerald, and the one we recognize today, are not that the President must be immune because he is the President; rather, they are to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions. The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.

III

Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue. The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular.

Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions).

A

Determining whether an action is covered by immunity . . . begins with assessing the President’s authority to take that action.

But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” And some Presidential conduct—for example, speaking to and on behalf of the American people—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”

In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.”

Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

B

With these principles in mind, we turn to the conduct alleged in the indictment.

The indictment broadly alleges that Trump and his co-conspirators sought to “overturn the legitimate results of the 2020 presidential election.” It charges that they conspired to obstruct the January 6 congressional proceeding at which electoral votes are counted and certified, and the winner of the election is certified as President-elect. As part of this conspiracy, Trump and his co-conspirators allegedly attempted to leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors. According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.”

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” and the Constitution vests the entirety of the executive power in the President, Art. II, § 1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U.S., at 106. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.”

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

The indictment next alleges that Trump and his co-conspirators “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” In particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.

The Government explained at oral argument that although it “has not yet had to come to grips with how [it] would analyze” Trump’s interactions with the Vice President, there is “support” to characterize that conduct as official. Indeed, our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office. These two officials are the only ones “elected by the entire Nation.”

The Vice President may in practice also serve as one of the President’s closest advisers. The Office of Legal Counsel has explained that within the Executive Branch, the Vice President’s “sole function [is] advising and assisting the President.”

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.”

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

The indictment’s remaining allegations cover a broad range of conduct. Unlike the allegations describing Trump’s communications with the Justice Department and the Vice President, these remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public. Many of the remaining allegations, for instance, cover at great length events arising out of communications that Trump and his co-conspirators initiated with state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin regarding those States’ certification of electors.

At oral argument, Trump appeared to concede that at least some of these acts—those involving “private actors” who “helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding” at the direction of Trump and a co-conspirator—entail “private” conduct. He later asserted, however, that asking “the chairwoman of the Republican National Committee ... to gather electors” qualifies as official conduct because “the organization of alternate slates of electors is based on, for example, the historical example of President Grant as something that was done pursuant to and ancillary and preparatory to the exercise of ” a core Presidential power. He also argued that it is “[a]bsolutely an official act for the president to communicate with state officials on ... the integrity of a federal election.” The Government disagreed, contending that this alleged conduct does not qualify as “official conduct” but as “campaign conduct.” . . .

The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.

Finally, the indictment contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. It alleges that leading up to the January 6 certification proceeding, Trump issued a series of Tweets (to his nearly 89 million followers) encouraging his supporters to travel to Washington, D. C., on that day. Trump and his co-conspirators addressed the gathered public that morning, asserting that certain States wanted to recertify their electoral votes and that the Vice President had the power to send those States’ ballots back for recertification. Trump then allegedly “directed the crowd in front of him to go to the Capitol” to pressure the Vice President to do so at the certification proceeding. When it became public that the Vice President would not use his role at the certification proceeding to determine which electoral votes should be counted, the crowd gathered at the Capitol “broke through barriers cordoning off the Capitol grounds” and eventually “broke into the building.”

The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. . .

There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. But “there is not always a clear line between [the President’s] personal and official affairs.” The analysis therefore must be fact specific and may prove to be challenging. . .

Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication. This necessarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.

C

The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.

The Government does not dispute that if Trump is entitled to immunity for certain official acts, he may not “be held criminally liable” based on those acts. But it nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.” That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But “[t]he Constitution deals with substance, not shadows.” And the Government’s position is untenable in light of the separation of powers principles we have outlined.

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted.

IV

A

Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. . . The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” It then specifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. . .

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.

B

. . . [T]he Government contends that the President should not be considered immune from prosecution for . . . official acts. On the Government’s view, as-applied challenges in the course of the trial suffice to protect Article II interests, and review of a district court’s decisions on such challenges should be deferred until after trial. . . . The Government asserts that the “[r]obust safeguards” available in typical criminal proceedings alleviate the need for pretrial review. . .

Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him “unduly cautious in the discharge of his official duties.” Vulnerability “ ‘to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute.’ ” The Constitution does not tolerate such impediments to “the effective functioning of government.” 

C

As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. . .  

The principal dissent . . . cites the Impeachment Judgment Clause, arguing that it “clearly contemplates that a former President may be subject to criminal prosecution.” But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular. And the assortment of historical sources the principal dissent cites are unhelpful for the same reason. As the Court has previously noted, relevant historical evidence on the question of Presidential immunity is of a “fragmentary character.” “[T]he most compelling arguments,” therefore, “arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine.” Fitzgerald, 457 U.S., at 752, n. 31. . .

Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.

Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President “above the law.” As before, that “rhetorically chilling” contention is “wholly unjustified.” Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.

The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. . . 

V

This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown, 343 U.S., at 634 (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” . . .

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

Justice THOMAS, concurring.

. . . I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, § 2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. . .

Before the President or a Department Head can appoint any officer . . . the Constitution requires that the underlying office be “established by Law.” The Constitution itself creates some offices, most obviously that of the President and Vice President. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise provided for,” it clearly requires that those offices “shall be established by Law.” § 2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.” Lucia v. SEC, 585 U.S. 237, 254 (2018) (THOMAS, J., concurring).

The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices.” The Federalist No. 69, p. 421 (C. Rossiter ed. 1961) . . . That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of offices and then fill them with his supporters. . . In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Declaration of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421.

The Founders broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices. They did so by “imposing the constitutional requirement that new officer positions be ‘established by Law’ rather than through a King-like custom of the head magistrate unilaterally creating new offices.” . . .

II

It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have. Instead, the Attorney General relied upon several statutes of a general nature. . .  

To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U.S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.

[A partially concurring opinion by Justice BARRETT, has been omitted. Justice Barrett did not join Part III–C of the Court’s opinion, in which the Court held that evidence of official acts are not admissible to prosecute a former President for unofficial acts. She also laid out a different methodology for deciding when the President is entitled to immunity than the majority's approach.]

Justice SOTOMAYOR, with whom Justice KAGAN and Justice JACKSON join, dissenting.

. . . The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents. . .

[T]he Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, § 6, cl. 1 (“Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents.

[In addition,] “some state constitutions at the time of the Framing specifically provided ‘express criminal immunities’ to sitting governors.” The Framers chose not to include similar language in the Constitution to immunize the President. If the Framers “had wanted to create some constitutional privilege to shield the President ... from criminal indictment,” they could have done so. They did not.

[I]nsofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former Presidents. The majority correctly rejects Trump’s argument that a former President cannot be prosecuted unless he has been impeached by the House and convicted by the Senate for the same conduct. The majority ignores, however, that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, § 3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as “Bribery,” Art. II, § 4, which implicates official acts almost by definition.

[In this section, Justice Sotomayor surveyed the history of the Constitution’s founding and concluded that there was not sufficient evidence that the Framers intended the President to be immune from criminal prosecution]

Our country’s history also points to an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts. Consider Watergate, for example. After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily “rested on the understanding that the former President faced potential criminal liability.”

Subsequent special counsel and independent counsel investigations have also operated on the assumption that the Government can criminally prosecute former Presidents for their official acts, where they violate the criminal law. See, e.g., 1 L. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters: Investigations and Prosecutions 445 (1993) (“[B]ecause a President, and certainly a past President, is subject to prosecution ... the conduct of President Reagan in the Iran/contra matter was reviewed by Independent Counsel against the applicable statutes. It was concluded that [his] conduct fell well short of criminality which could be successfully prosecuted”).

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” They insisted that a former President “is like any other citizen and can be tried in a court of law.” Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. . .

IV

A

Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least ... presumptive[ly],” immune from criminal prosecution for all of their official acts. The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the President must ... be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon, 418 U.S. 683, 707 (1974). According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision as to “whether [official-acts] immunity must be absolute” or whether, instead, “presumptive immunity is sufficient,” ante, at 2327, hardly matters. . .

Quick on the heels of announcing this astonishingly broad official-acts immunity, the majority assures us that a former President can still be prosecuted for “unofficial acts.” Of course he can. No one has questioned the ability to prosecute a former President for unofficial (otherwise known as private) acts. Even Trump did not claim immunity for such acts and, as the majority acknowledges, such an immunity would be impossible to square with Clinton v. Jones, 520 U.S. 681 (1997). This unremarkable proposition is no real limit on today’s decision. It does not hide the majority’s embrace of the most far-reaching view of Presidential immunity on offer. . .

The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions.

The majority says that the danger “of intrusion on the authority and functions of the Executive Branch” posed by criminally prosecuting a former President for official conduct “is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” . . .Yet there are many facets of criminal liability, which the majority discounts, that make it less likely to chill Presidential action than the threat of civil litigation.

First, in terms of probability, the threat of criminal liability is much smaller. In Fitzgerald, the threat of vexatious civil litigation loomed large. The Court observed that, given the “visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.” . . .The majority’s bare assertion that the burden of exposure to federal criminal prosecution is more limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive.

Second, federal criminal prosecutions require “robust procedural safeguards” not found in civil suits. The criminal justice system has layers of protections that “filter out insubstantial legal claims,” whereas civil litigation lacks “analogous checks.” . . .The grand jury provides an additional check on felony prosecutions, acting as a “buffer or referee between the Government and the people,” to ensure that the charges are well-founded.

If the prosecution makes it past the grand jury, then the former President still has all the protections our system provides to criminal defendants. If the former President has an argument that a particular statute is unconstitutional as applied to him, then he can move to dismiss the charges on that ground. Indeed, a former President is likely to have legal arguments that would be unavailable to the average criminal defendant.

If the case nonetheless makes it to trial, the Government will bear the burden of proving every element of the alleged crime beyond a reasonable doubt to a unanimous jury of the former President’s fellow citizens. . .

So what exactly is the majority worried about deterring when it expresses great concern for the “deterrent” effect that “the threat of trial, judgment, and imprisonment” would pose? It cannot possibly be the deterrence of acts that are truly criminal. Nor does it make sense for the majority to wring its hands over the possibility that Presidents might stop and think carefully before taking action that borders on criminal. Instead, the majority’s main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution—a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate. The Court should not have so little faith in this Nation’s Presidents.

At the same time, the public interest in a federal criminal prosecution of a former President is vastly greater than the public interest in a private individual’s civil suit. All nine Justices in Fitzgerald explicitly recognized that distinction. . . The public interest in criminal prosecution is particularly strong with regard to officials who are granted some degree of civil immunity because of their duties. It is in those cases where the public can see that officials exercising power under public trust remain on equal footing with their fellow citizens under the criminal law. . .This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally”. . . The public interest in the federal criminal prosecution of a former President alleged to have used the powers of his office to commit crimes may be greater still. . .When Presidents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority overlooks that paramount interest entirely. . .

The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive. It does not. Rather, it diminishes that independence, exalting occupants of the office over the office itself. There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity.

In the case before us, the public interest and countervailing Article II interest are particularly stark. The public interest in this criminal prosecution implicates both “[t]he Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution” as well as “the voters’ interest in democratically selecting their President.” It also, of course, implicates Congress’s own interest in regulating conduct through the criminal law. Yet the majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.” . . .

V

Separate from its official-acts immunity, the majority recognizes absolute immunity for “conduct within [the President’s] exclusive sphere of constitutional authority.” Feel free to skip over those pages of the majority’s opinion. With broad official-acts immunity covering the field, this ostensibly narrower immunity serves little purpose. In any event, this case simply does not turn on conduct within the President’s “exclusive sphere of constitutional authority,” and the majority’s attempt to apply a core immunity of its own making expands the concept of “core constitutional powers,” beyond any recognizable bounds.

The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue. . . In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. . .

The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “‘take Care that the Laws be faithfully executed’” among the core functions for which a former President supposedly enjoys absolute immunity. That expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution. . .

VI

Not content simply to invent an expansive criminal immunity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts.

Even though the majority’s immunity analysis purports to leave unofficial acts open to prosecution, its draconian approach to official-acts evidence deprives these prosecutions of any teeth. If the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts. For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.

VII

As troubling as this criminal immunity doctrine is in theory, the majority’s application of the doctrine to the indictment in this case is perhaps even more troubling. In the hands of the majority, this new official-acts immunity operates as a one-way ratchet.

First, the majority declares all of the conduct involving the Justice Department and the Vice President to be official conduct, yet it refuses to designate any course of conduct alleged in the indictment as private, despite concessions from Trump’s counsel. Trump’s counsel conceded, for example, that the allegation that Trump “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” “sounds private.” He likewise conceded that the allegation that Trump “conspired with another private attorney who caused the filing in court of a verification signed by [Trump] that contained false allegations to support a challenge” “sounds private.” Again, when asked about allegations that “[t]hree private actors ... helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and [Trump] and a co-conspirator attorney directed that effort,” Trump’s counsel conceded the alleged conduct was “private.” Only the majority thinks that organizing fraudulent slates of electors might qualify as an official act of the President, or at least an act so “interrelated” with other allegedly official acts that it might warrant protection. If the majority’s sweeping conception of “official acts” has any real limits, the majority is unwilling to reveal them in today’s decision. . .

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

* * *

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ... all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.

Justice JACKSON, dissenting.

. . . I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward.

I

. . . In its purest form, the concept of immunity boils down to a maxim—“ ‘[t]he King can do no wrong’ ”—a notion that was firmly “rejected at the birth of [our] Republic.” To say that someone is immune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore “create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.” . . .

A corollary to that principle sets the terms for this case: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). We have long lived with the collective understanding that “[d]ecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen,” for “[i]n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

[T]he Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. [T]he majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

A

. . . With its adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself. . . As to the former, it should go without saying that the Office of the Presidency, the apex of the Executive Branch, is made significantly more powerful when the constraints of the criminal law are lifted with respect to the exercise of a President’s official duties. After today’s ruling, the President must still “take Care that the Laws be faithfully executed,” Art. II, § 3; yet, when acting in his official capacity, he has no obligation to follow those same laws himself.

But whatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. However, the majority does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause. So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess.

Nor does the majority explain how to consistently distinguish between official and unofficial acts. Quite the opposite, in fact. While acknowledging that this is a critical line that courts must draw in order for its new accountability model to work properly, the majority simultaneously cautions that making this distinction “can be difficult”—likely a gross understatement given the recognized “breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States.” The majority likewise provides no guidance as to when, how, or why the President’s “presumptive” immunity for noncore official acts might be rebutted, saying only that applying the criminal law to a President’s acts must pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Perhaps even more troubling, while Congress (the branch of our Government most accountable to the People) is the entity our Constitution tasks with deciding, as a general matter, what conduct is on or off limits, the Court has now arrogated that power unto itself when that question pertains to the President. In essence, the Court has now imposed its own preclearance requirement on the application of Congress’s laws to a former President alleged to have committed crimes while in office. Who will be responsible for drawing the crucial “‘line between [the President’s] personal and official affairs’”? To ask the question is to know the answer. A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents, by labeling his various allegedly criminal acts as “core,” “official,” or “manifestly or palpably” beyond the President’s authority.

Ironically, then, while purportedly seeking to transcend politics, the Court today displaces the independent judgments of the political branches about the circumstances under which the criminal law should apply. Effectively, the Court elbows out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future attempts to hold former Presidents accountable to generally applicable criminal laws. “The Framers, however, did not make the judiciary the overseer of our government.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). . .

B

If the structural consequences of today’s paradigm shift mark a step in the wrong direction, then the practical consequences are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government. . . Here, I will merely observe that, from a theoretical perspective, philosophers have long considered deterrence to be a key justification for adopting and maintaining systems that ensure accountability for criminal conduct. For that same reason, some commentators also maintain that decreasing the certainty of accountability for wrongful acts at least arguably reduces incentives to follow the law.

. . .To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely. “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Likewise, “[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” I worry that, after today’s ruling, our Nation will reap what this Court has sown. . .

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.

In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.