Fisher (2007) “Invoking Inherent Powers: A Primer.” (vs expressed powers and implied powers)
Expressed powers: Clearly stated in the Constitution (i.e. Constitution Article II)
Implied powers: intrinsic?

Article II of the Constitution gives the President “inherent powers.”
But Fisher argues that inherent powers are always shady... we can't leave it up to the president to define the claims of the office; we need to rule out the argument, based of the basis of extreme FUZZINESS.

History of the powers’ use:
Abe Lincoln and the suspension of the writ of habeus corpus during the Civil War.
Harry S. Truman and the “police action” (war) with South Korea; Truman claimed it was an “emergency action” and the president has the right to “act for whatever is best for the country” (6). Truman later seized the steel mills, as well.

Commentary:
Commager and Schlesinger Jr. (both political scholars) first condoned Truman’s actions; they later reneged, and apologized for contributing to the façade that president’s are all powerful.
Neustadt (1960) explores the president and power, and says the president’s power is irrevocably tied up in his ability to persuade. “Neustadt measured presidential success by action, vigor, decisiveness, initiative, energy, and personal power” (9).
Yoo (1996) wrote, “the framers of the condistition created a framework designed to encourage presidential initiative in war. Congress was given a role in war-making decisions not by the Declare War Clause, but by its power over finding and impeachment.

Fisher (2007) disagrees with Yoo (1996) and Neustadt (1960); he sites the First Article of the Constitution, among other things…

Case Study: G.W.Bush
Invoking inherent powers
(1) MILIARY COMMISSIONS
On Nov. 13, 2001, a ruling was made which gave the president the authority to convener military commissions. This power arises “from the constitutions vesting in the president of the executive power and the power of Commander in Chief of the Armed Forces” (13). These commissions acted outside the law, under the condition that they were established by the president, exercising his legal and legitimate powers.
AUMF-Authorities for Use of Military Force
UCMJ-Uniform Code of Military Justice
Hamdan v. Rumsfeld (2006) found commission to violate UCMJ.
(2) ENEMY COMBATANTS
Enemy combatants has come to mean citizens of the United States which are found to be enemies of the state, and thus can be treated as such (certain rights guaranteed to citizens are taken away). The president invoked this power under the condition that “the Constitution vests the president with exclusive authority to act as Commander in Chief and as the nations sole organ in Foreign Affairs” (13), and the courts should not second guess his position/decision. The president is more familiar with military actions/business.
*on June 28, 2004 the Supreme Court rejected that Hamdan’s detention was soley a presidential decision, and thus intervened. Sandra Day-O-Connor announced “…a state of war is not a blank check for the President…”; the courts ruling established that exchanges with other nations in times of conflict “most assuredly envisions a role for all three branches when individual liberties are at stake…” (14).
(3) TORTURE MEMOS
Found Geneva Conventions to not apply to members of Al Qaeda organizations (memo written by Yoo & Delahunty in 2002). “As Commander in Chief, the President has the authority to order interrogation of enemy combatants to gain intelligence…” (15). Further, the Torture Statute does not apply to the conduct of personal at GITMO (this they are essentially above international law).
*at the end of 2004 the OLC (Office of Legal Cousel) released a memo condemning torture. Alberto Gonzales claimed the memo did not apply to CIA activities, thus deliberately separating the standard set for the Department of Defense and the CIA.
(4) EXTRAORDINARY RENDITION
“Allows detainees to be sent to another country for interrogation and torture” (16). “In court the Bush administrtion argued that individuals subject to extraordinary rendition are barred from litigating their grievances because a lawsuit would risk the disclosure of state secrets and encroach on independent presidential authority: ‘The state secrets privledge is based on the President’s Article II power to conduct foreign affairs and to provide for the national defense, and therefore has constitutional underpinnings” (17). Condi Rice rose to the defense when she said rendition is not unique to the US or the current administration.
*On September 6, 2006 Bush confirmed the existence of CIA operations abroad for the purpose of interrogating suspects; the Senate republicans insisted on a military bill that would provide for continued tough interrogation of suspects.
(5) NSA EAVESDROPPING
In the months following 9/11 Bush authorized the NSA to listen to those in the US without a court-approved warrant (phones and emails) to obtain evidence of terrorist plots.
on December 19, 2005, Bush stated “I hate the constitutional responsibility and authority to protect our country. Article II gives me the responsibility and authority to fulfill it” (18). FISA (foreign intelligence surveillance act) court was created in 1978 to authorize such activity. Bush did not consult the FISA court. Gonzales said he did not because “it would have been difficult if not impossible” to get permission; and they had to act quickly.

Conclusion:
How much power should the president be given, under Article II of the Constitution? What does the instigation of inherent powers say of the “vitality of republican government, popular sovereignty and the traditional checks and balances that channel political power and limit its abuse” (20)?