Inherent Presidential Power and Constitutional Structure


Neil Kinkopf is associate professor of law at Georgia State University College of Law. Previously, he was an attorney in the Justice Department's Office of Legal Counsel.


Much current debate about presidential power revolves around the phrase “inherent power.” This phrase has a loose signification, but disputes often involve the question of whether presidential power is subject to limitation by Congress. This essay identifies four different constitutional constructions that might lead to such unchecked presidential power. The essay also assesses each of these four constructions from the standpoint of the Constitution's structure, concluding in each case that the assertion of unchecked power is inconsistent with constitutional structure.