LESSON 6: HIERARCHY OF LEGAL SOURCES
6.2 Priority of Blackletter Primary Authority
6.2.3 Federal Statute vs. Presidential Rule
Annotated Lecture Transcript
Statutes also prevail over conflicting Executive Orders, unless those orders are directly connected to the Constitutional powers of the President, and even still the statute will likely prevail because of the Supreme Court’s jurisprudence regarding conflicts between the President and Congressional statutes.
According to the leading constitutional view, when the President acts contrary to an Act of Congress, his power is at its lowest ebb, and usually his action will be invalid unless clearly necessary to one of his independent constitutional powers.
Remember that in the national security arena, the President is acting pursuant to implied powers connected to his express powers as Commander-in-Chief and role as the primary representative of the United States in foreign relations.
These implied powers give him the power to act unilaterally when Congress has not spoken, and give him incredible power when Congress has authorized his conduct, but when he decides to act contrary to a congressional statute his actions will be struck down if based solely upon an implied power like national security.
 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (Justice Jackson’s Full 3-Tiered System: “The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. (1) When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. (2) When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. (3) When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”).