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Professors Banks and Driesen Publish on "Implied Presidential and Congressional Powers"

Posted on Tuesday 10/6/2020
William Banks and David Driesen
Implied Presidential and Congressional Powers. Cardozo Law Review 41:4 (2020).

A significant question of constitutional law has received a lot of attention lately—whether the Department of Justice (DOJ) may indict a sitting President. The Constitution’s text does not prohibit indictment of a sitting President, so the idea that he has the power to avoid indictment while in office raises an issue of implied presidential power.

This Article compares the modern Supreme Court’s treatment of implied presidential power to its treatment of implied congressional power across a wide variety of subject matter areas. It takes care to define implied powers, something neglected in the literature. That definition leads to the conclusion already articulated, that presidential indictment, while usually characterized as an immunity issue, is also an implied power issue.

The literature on implied powers usually focuses on a specific implied power or the implied powers of a particular branch of government, but it does not compare the application of implied power concepts to different branches of government. The President’s power over foreign affairs and national security, which is primarily an implied power, has received the most scholarly attention. Former Yale Law School Dean Harold Koh once opined that the President almost always wins in foreign affairs cases. 

Koh and many other constitutional scholars maintained that the judiciary cooperated in increasing the implied power of the President over foreign affairs and national security by habitually deferring to or declining to review presidential initiatives in that area ...