The President's Completion Power

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ESSAY CONTENTS

INTRODUCTION

I. YOUNGSTOWN AND THE COMPLETION POWER

II. THE COMPLETION POWER AFTER YOUNGSTOWN
     A. Foreign Affairs Authorizations
     B. Presidential Use of Military Force Abroad
     C. Executive Enforcement
     D. Presidential Supervision of Rulemaking
     E. The Chevron Doctrine

III. THE COMPLETION POWER: A TENTATIVE ANALYSIS
     A. Constitutional Source
     B. Scope and Limits

CONCLUSION

INTRODUCTION

This Essay examines an important but understudied feature of executive power: the President's completion power. The completion power is the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of any congressional authorization to complete that scheme. The completion power complements but does not derive from particular statutory commands. It is a defeasible power; Congress can limit it, for example, by denying the President the authority to complete a statute through certain means or by specifying the manner in which a statute must be implemented. But in the absence of such affirmative legislative limitation or specification, courts and Presidents have recognized an Article II power of some uncertain scope to complete a legislative scheme.

The completion power merits analysis for at least three reasons. First, Presidents have exercised the completion power in very different contexts--for example, in administering a regulatory statute, in exercising prosecutorial discretion, and in using force abroad in the absence of express congressional authorization--based on nominally different sources of authority in Article II. Focus on the completion power as such might lend conceptual coherence to several important areas of executive authority whose connection has not previously been understood. Second, the most comprehensive statement of what we call the completion power is found in Chief Justice Vinson's neglected dissent in Youngstown Sheet & Tube Co. v. Sawyer. (1) Despite its general disregard in constitutional jurisprudence, the frame of analysis in Vinson's dissent corresponds to a surprising number of important post-Youngstown doctrinal developments. Given the canonical status of Youngstown, even a partial vindication of Vinson's approach is of intrinsic interest. Third, and perhaps controversially, examination of the completion power sheds light on a potentially interesting structural symmetry that cuts across Articles I, II, and III of the Constitution--namely, that even though only Article I contains an express Necessary and Proper Clause, each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it.

Our aim in this Essay is to put the completion power, as a distinct presidential power, on the table for analysis. Space constraints compel us to cut a wide swath over many complex areas of executive power and bracket many complicating factors and nuances that a complete treatment of the subject would need to address. In these respects, the Essay seeks to be the first word, not the last, on the completion power. Part I describes the completion power through the lens of the leading opinions in Youngstown. Part II shows how aspects of the completion power suggested in Chief Justice vinson's dissent have become central to post-Youngstown developments in several important areas of executive power. Part III examines normative questions about the completion power.

I. YOUNGSTOWN AND THE COMPLETION POWER

In the midst of the Korean Conflict, the United Steelworkers of America called a nationwide strike to resolve a labor dispute concerning the terms and conditions of employment in the steel industry. President Truman responded with an Executive Order directing the Secretary of Commerce to seize and operate the steel mills. (2) The Order contained specific presidential findings about the indispensability of steel production to the war effort in Korea and to other defense efforts. …