Precedents on Inherent Authority:

I’ve been watching parts of the Gonzales hearings this morning, and find it a bit frustrating that Gonzales seems to me mixing up two different kinds of claims concerning “inherent authority” to conduct surveillance. The first kind of inherent authority is inherent in the sense that Congress does not need to create it for it to exist; the power exists even before Congress grants it. The second kind of inherent authority is inherent in the sense that Congress cannot extinguish it; the power exists even after Congress tries to take it away. It is true that there are a number of past precedents on the first type of inherent authority, but there is very little on the second type. My understanding is that Gonzales is using “inherent authority” in the second sense, but I don’t think it’s particularly helpful to cite precedents on the first type of inherent authority to support a claim of the second type of inherent authority.

  UPDATE: Commenters question whether such a distinction exists, and want some examples. Justice Jackson’s Youngstown concurrence explains the basic categories; I trust many readers will be familiar with them. Readers may be less familar with a particularly relevant example, traditional Fourth Amendment search and seizure law. Congress didn’t pass a statute regulating federal search and seizures until 1917, when it passed the Espionage Act of 1917. Federal agents had been executing searches and obtaining warrants for over 100 years up to that point without any explicit statutory authorization; such powers were considered part of the inherent authority of the executive branch. Starting in 1917, however, Congress explicitly authorized federal search warrants to be issued, and included explicit statutory limits on their use. In the last 90 years, Congress has often passed laws regulating the warrant process beyond Fourth Amendment limits, ranging from the Wiretap Act of 1968 to the Patriot Act of 2001. I don’t think anyone has argued that the executive branch’s inherent authority to conduct warrantless searches and obtain warrants before the Espionage Act of 1917 means that Congress lacks the power to impose restrictions on the warrant process and domestic searches and seizures. Inherent authority absent statutory authorization is different from inherent authority in the face of statutory prohibition.