Over the past several months an entirely new class of executive power-related concerns have percolated through the national media and have begun burgeoning in federal courts.  Prior to the election of President-Elect Trump, few knew about the Emoluments Clause in the Constitution and how it could be violated.  Just this morning Trump’s comments on Twitter raised the specter of a renewed debate about whether the First Amendment protects the burning of the American Flag (it does).  Add to this the question of using the precedent of Japanese internment camps to create a national Muslim registry and there are already major questions about how the extent of executive power will be tested during the Trump Presidency.  This post examines the past, present, and potential future of the Supreme Court’s involvement in defining the limits of executive power.

Cases Since 1950

A multitude of Supreme Court cases have examined the extent of power inherent in the Executive Branch of the Federal Government and in particular invested in the President.  The list of cases examined in the post is meant to provide examples of such cases and is not necessarily a full set of all possible decisions that examine executive power.  We narrowed down the cases using particular search terms described at the bottom of the post to look at the major issues examined by the Court since 1950.  The set of decisions examined in the post along with the case year and the President in office during the case are found in the chart below.

Case	Year	President
Zivotosfky v. Kerry	2015	Obama
NLRB v. Canning	2014	Obama
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.	2009	Obama
Boumediene v. Bush	2008	GWB
Medellin v. Texas	2007	GWB
Hein v. Freedom From Religion Foundation, Inc.	2007	GWB
Hamdan v. Rumsfeld	2006	GWB
Rumsfeld v. Padilla	2004	GWB
Cheney v. United States	2004	GWB
Clinton v. Goldsmith	1999	Clinton
Clinton v. City of New York	1998	Clinton
Raines v. Byrd	1997	Clinton
Clinton v. Jones	1997	Clinton
Loving v. United States	1996	Clinton
Dalton v. Spencer	1994	Clinton
Sale v. Haitian Centers Council, Inc.	1993	HW Bush
Morrison v. Olson	1988	Reagan
Dames & Moore v. Regan	1981	Reagan
Schick v. Reed	1974	Carter
Holtzman v. Schlesinger	1973	Nixon
Zemel v. Rusk	1965	Johnson
Wiener v. United States	1958	Eisenhower
Orvis v. Brownwell	1953	Eisenhower
Youngstown Sheet & Tube Co. v. Sawyer,	1952	Truman
Zittman v. McGrath	1951	Truman
United States v. Allied Oil Corp.	1951	Truman
Lyon v. Singer	1950	Truman

This list gives a sense of the distribution of cases over time since 1950.  The chart below shows the central issues the Court faced in these cases.

Case	Issue
Zivotosfky v. Kerry	Recognize foreign entities
NLRB v. Canning	Appoint officials under the Recess Appointments Clause
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.	Whether Congress can restrict the President’s removal power
Boumediene v. Bush	Detention Power
Medellin v. Texas	Power to order states to relax criminal procedures to obey a World Court ruling
Hein v. Freedom From Religion Foundation, Inc.	Taxpayer standing to challenge against Executive Branch actions
Hamdan v. Rumsfeld	Detention Power
Rumsfeld v. Padilla	Determination of enemy combatant
Cheney v. United States	Whether the Federal Advisory Committee allowed judicial review of executive branch deliberations.
Clinton v. Goldsmith	Ability to enjoin the President and military officials from dropping a convict from the Air Force.
Clinton v. City of New York	Line Item Veto Act violated the Presentment Clause.
Raines v. Byrd	Challenge the Line Item Veto Act as a violation of the Presentment Clause.
Clinton v. Jones	Absolute immunity from civil litigation arising from events before taking office.
Loving v. United States	Authority to prescribe aggravating factors in death penalty upon member of the Armed forces.
Dalton v. Spencer	Whether an Executive Order should be subject to judicial review.
Sale v. Haitian Centers Council, Inc.	Whether Executive Order 12807 violated Article 33.
Morrison v. Olson	Whether the Ethics in Government Act of 1987 violated the Separation of Powers
Dames & Moore v. Regan	President authority to transfer Iranian funds and to nullify legal claims against Iran.
Schick v. Reed	Whether  Eisenhower exceeded his powers to commute criminal sentences.
Holtzman v. Schlesinger	Injunction against a bombing campaign in Cambodia
Zemel v. Rusk	Power to refuse to validate passports for travel to Cuba
Wiener v. United States	Eisenhower authority to terminate membership on the War Claims Comm.
Orvis v. Brownwell	Validity of Executive Order 8389 pursuant to Trading with the Enemy Act
Youngstown Sheet & Tube Co. v. Sawyer,	Whether the President had the constitutional authority to seize steel mills.
Zittman v. McGrath	Executive Orders 8785 – forbid the transfer of assets of German nationals
United States v. Allied Oil Corp.	Executive Orders 9841 and 9842 transferring various function to the AG and Secretary of Commerce
Lyon v. Singer	Executives Order 8389 and 8832 blocking transactions with a Japanese corporation

The Court’s decision in Clinton v. Jones has come up recently as a potentially significant holding that may come into play in the near future with various pending civil lawsuits against President-Elect Trump.  As you will see in the next section, many of the issues raised in the more recent cases were also raised in cert petitions in the last several years (sometimes more than once).

A final way to examine these cases is by how the Court ruled and who wrote the majority opinions in these decisions.  This is covered in the following chart.

Case	Justice Op.	For/Against Exec. Pwr
Zivotosfky v. Kerry	Kennedy	FOR
NLRB v. Canning	Breyer	AGAINST
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.	Roberts	FOR
Boumediene v. Bush	Kennedy	AGAINST
Medellin v. Texas	Roberts	AGAINST
Hein v. Freedom From Religion Foundation, Inc.	Alito	FOR
Hamdan v. Rumsfeld	Stevens	AGAINST
Rumsfeld v. Padilla	Rehnquist	FOR
Cheney v. United States	Kennedy	FOR
Clinton v. Goldsmith	Souter	FOR
Clinton v. City of New York	Stevens	AGAINST
Raines v. Byrd	Rehnquist	FOR
Clinton v. Jones	Stevens	AGAINST
Loving v. United States	Kennedy	FOR
Dalton v. Spencer	Rehnquist	FOR
Sale v. Haitian Centers Council, Inc.	Stevens	FOR
Morrison v. Olson	Rehnquist	FOR
Dames & Moore v. Regan	Rehnquist	FOR
Schick v. Reed	Burger	FOR
Holtzman v. Schlesinger	Marshall	FOR
Zemel v. Rusk	Warren	FOR
Wiener v. United States	Frankfurter	AGAINST
Orvis v. Brownwell	Jackson	FOR
Youngstown Sheet & Tube Co. v. Sawyer,	Black	AGAINST
Zittman v. McGrath	Jackson	FOR
United States v. Allied Oil Corp.	Black	FOR
Lyon v. Singer	Per Curiam	FOR

There are a few patterns readily discernible from this data.  It may be worth noting that the number of majority opinions written by former Chief Justice Rehnquist (five) all in support of executive power.  During this period Justice Stevens wrote three opinions in such cases and all were against the expansion of the scope of executive power as described in the cases.

The Court over time has been predominately in favor of allowing the President the power to engage in the actions examined in the cases.  There is a Constitutional basis for the Court to defer to the President within a separation of powers framework just as there is for the Court to be a check on Executive power.  The general position of the Court as deferential to the President’s power, therefore, may not be surprising.

Existent and Extinct Petitions for Writ of Certiorari to the Supreme Court

Over the past several decades, questions about scope executive power shift according to issues of national significance.  These shifts are apparent in cert petitions in cases where petitioners challenge the use of executive power.  The types of petitions and their dates of filings track when certain issues were and are particularly pertinent.  The first figure shows the number of petitions where the main question examines the scope of executive power from 2004 through 2015 (the search terms used to locate these petitions is provided at the bottom of the post):

The figure shows a general increase in the number of petitions which begins to rise significantly around 2010.  Although this doesn’t coincide perfectly with the transition to the Obama Presidency there is correlation in the types of petitions that arose during the Obama Presidency and the upward trend in petitions.  This correlation may become perceptible by viewing the types or issues most prevalent in these petitions.

The most common questions raised in these petitions focus on election qualifications, detentions, separation of powers or the distribution of power between the branches of the Federal Government, recess appointments, and the president’s appointment/removal power generally.  Each of these issues tends to cluster around particular periods of the Bush or Obama presidencies.  The qualifications questions center around President Obama’s birth and nationality (and consequent ability to run for and retain the Office of President), the detention questions came around the time that the Court heard the Hamdi/Hamadan cases, and the recess appointment questions were raised around the time the Court heard the Canning case.  The following figure breaks down the distribution of years when petitions in these issue areas were filed

As these petitions tend to cluster in particular years it will be quite interesting to see the types of issues that are raised in forthcoming Supreme Court petitions and how they cluster across specific periods of the Trump Presidency.

Current Filings/Cases (petitions and decisions since Nov. 1, 2016)

There are already several Supreme Court petitions and/or briefs which refer to Trump in his President-Elect capacity as described below:

• A reply brief in Smith v. New York (No. 16-284) filed on November 16, 2016 discusses the New York Law Journal article entitled, “Trump Presidency Could Shift Regulatory Spotlight to State and AG.”
• Petitioner’s supplemental brief in Bender v. Obama (No. 16-419) filed on November 15, 2016, (also covered in the above section of cert petitions) describes that the Trump election affects review in this case as it relates to Joint Comprehensive Plan of Action (“JCPOA”) which Trump declared he would cancel if elected while Clinton announced she supported it.
• In the Consolidated cases of Jean Coulter v. Pennsylvania Superior Court, (No. 16-197) the petition for rehearing filed on November 14, 2016 describes that, “the People have expressed their complete disgust with the level of corruption that our Elected Officials have displayed – culminating in the election of a blatantly-bigoted President-Elect Donald Trump earlier this week.” [the petition continues] “…And, following my recovery from a “nasty sprain” of my ankle, I have returned to my protest position in front of This Honorable Court, to find dramatically increased interest in my Protest aimed at ending the Corruption of our “System of Justice” by those who have, thus far, successfully made it into a “System for Just US”.

Finally, in a strange case before the District Court for the District of New Jersey, entitled Kaighn v. Democratic Nat’l Comm. Civil Action (No. 16-8107), the opinion by Judge Vazquez describes,

Plaintiffs’ claims focus on the theory that the DNC and the RNC are part of the “Illuminati Dictatorship,” which “is waging World War III against the American people for the purpose of implementing their psychotic plan to destroy the American way of life.” Complaint (“Compl.”) ¶¶ 2, 9. Plaintiffs allege, among other things, that (1) “the September 11, 2001 terrorist attacks were an ‘inside job,'” coordinated by the “Illuminati Dictatorship, the New World Order, and the Rothschild Dynasty,” (2) their “son was kidnapped by the Illuminati Conspiracy because [they] proved that [the] government has been overthrown,” (3) “Donald John Trump is the Stealth Presidential Candidate of the Illuminati Dictatorship,” and that “Illuminati and New World Order conspiracies [go] back to the year 1776.” Id.

It only gets more interesting from there.

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On Twitter: @AdamSFeldman

With the assistance of: @SamuelPMorse

 

An ABA Journal Top 100 Blawg of 2016

 

Boolean case searches were used to locate the relevant documents.

For SCOTUS cert petitions, the parameters used were: DOCUMENT-TYPE(petition!) AND “Question presented” W/20(president! OR “article II”) AND DOCUMENT-TYPE(petition!)

For SCOTUS opinions, case summaries were searched with the parameters: (“article ii” OR (president! OR executive W/2 power!)