The Three Varieties of Presidential Power

Abstract

This chapter reviews Article II's organization according to the nature of presidential powers: prerogative powers, qualified prerogative powers, powers or duties involving limited discretion, defeasible residual powers, or delegated powers. It analyzes the structure of Article II by two key variables: whether a presidential power derives from the Constitution or a statute, and whether it is defeasible or not. It also mentions Justice Robert Jackson's three-part framework in his concurrence in the Steel Seizure Case, which was adopted by a unanimous Court in Dames & Moore v. Regan. The chapter considers the Steel Seizure concurrence as a prime reason modern separation of powers jurisprudence is in disarray. It cites Jackson's claim that presidential powers are not fixed, but fluctuate, depending upon their disjunction or conjunction with those of Congress.