The dawn of imperial presidency: Western plots, habeas corpus and implied powers (1890)

Abstract

It was especially from the beginning of the second half of 20th century that the «Imperial Presidency», as denounced by Arthur M. Schlesinger in his acclaimed book (1973), began to raise its menacing head in more conspicuous a way: one of the foremost argument put forth by subsequent post-war administrations to foster that expansion of executive authority was the claim of powers vested in the office of the President by the Constitution without an express clause. Even after Youngstown (1952), the Presidents continued to assert this privilege: but the origin of such a pretension is indeed quite older. In a case about the nature of presidential powers, the Supreme Court split on the proper allocation of duties pertaining to the preservation of public order (if those duties pertain to the President or Congress) but all the justices agreed that there are powers not explicitly conferred by the Constitution to the great departments of the Union but implied in a reasonable construction of the constitutional text. Contrary to what is currently claimed, the doctrine of implied powers forged by the Court in this landmark case (In re Neagle, 1890) can provide valuable guidance for future disputes about the extent of presidential powers, help the fight against vague and general assertions of executive authority and firmly ground a vigorous presidency in the text of the Constitution.