Inherent powers (United States)

In United States political theory, inherent powers are powers that are deemed to be possessed by a branch of government (legislative, executive or judicial) or a level of government (federal or state) because those powers contribute to the essential character of that branch or level. Used more broadly, the term can extend to also include powers that are explicitly conferred on a branch of government by the Constitution and therefore cannot be taken away except by constitutional amendment.

Declaring a power to be inherent, for example a Presidential power, can be controversial, as it suggests that the legislature has very limited authority over whether, when and how that power is to be exercised.

Inherent powers can be contrasted with statutory powers. In the case of the executive branch, it possesses any given statutory power only as long as the legislature keeps the relevant statute in existence; the repeal of the statute necessarily deprives the executive of any corresponding power.

There are some similarities between inherent powers and prerogative powers in that neither were created by ordinary legislation. Unlike a prerogative power, however, an inherent power cannot be taken away or converted into a statutory power by ordinary legislation. An inherent power is thus a feature of political systems that practice separation of powers, rather than fusion of powers.

In re Debs, 158 U.S. 564 (1895)[1] was a Supreme Court decision involving Eugene V. Debs and labor unions. Debs (president of the American Railway Union) was involved in the Pullman Strike earlier in 1894, and challenged the federal injunction ordering the strikers back to work. The injunction had been issued because of the hindrance to transportation of U.S. Mail. However, Debs refused to end the strike and was cited for contempt of court; he appealed the decision to the courts. The main question being debated was whether the President had a right to issue the injunction, which dealt with both interstate and intrastate commerce and shipping on rail cars. The legislative branch had never delegated to the President the power to issue an injunction. However, in a unanimous decision written by Justice David Josiah Brewer, the court ruled in favor of the U.S. government. Joined by Chief Justice Melville Fuller and Associate Justices Stephen Johnson Field, John Marshall Harlan, Horace Gray, Henry Billings Brown, George Shiras, Jr., Howell Edmunds Jackson and Edward Douglass White, the court ruled that the government had a right to regulate interstate commerce and ensure the operations of the Postal Service, along with a responsibility to "ensure the general welfare of the public."

The constitution is interpreted by the government and the people. However, the limits of inherent powers were articulated in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)[1]. This case was a Supreme Court decision limiting the power of the president to seize private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress. However, Justice Black's majority decision was qualified by separate concurring opinions of five other members of the Court; this made it difficult to determine the details and limits of the president's power to seize private property in emergencies. Justice Jackson's concurring opinion provided three categories to be considered:

• Congress authorizes (express or implied)
• Congress disapproves (express or implied)
• Congress does nothing (which can invite judicial consideration of the president's actions)

Effect of legislation

Congress or a state legislature can attempt, through legislation, to curtail the discretion of the executive branch as to the use of an inherent power. Such legislation may be challenged in the courts; thus, the disapproval of the legislative branch is insufficient either to take away an inherent power, or to show that the power was never really inherent.