Constitutional Law: Executive Power Flashcards
Vested in President
The entire “executive power” is vested in the President by Article II, Section 1 of the Constitution.
Various executive functions may be and are delegated within the “executive branch” by the
President or by Congress.
Domestic Powers: Appointment
Under Article II, Section 2, the President is empowered “with the advice and consent of
the Senate” to appoint all “ambassadors, other public ministers and consuls, judges of
the Supreme Court, and all other officers of the United States, whose appointments
are not herein otherwise provided for . . . but the Congress may by law vest the appointment
of such inferior officers, as they think proper, in the President alone, in the courts
of law, or in the heads of departments.”
Domestic Powers: Appointment of “Independent Counsel” (Special Prosecutor)
A special prosecutor with the limited duties of investigating a narrow range
of persons and subjects (e.g., to investigate alleged misconduct of a government
employee) is an inferior officer. Therefore, under the Appointment Clause,
Congress is free to vest the power to appoint a special prosecutor in the judiciary.
[Morrison v. Olson, 487 U.S. 654 (1988)]
Domestic Powers: No Appointments by Congress
Although Congress may appoint its own officers to carry on internal legislative
tasks (i.e., its staff), it may not appoint members of a body with administrative or
enforcement powers; such persons are “officers of the United States” and must,
pursuant to Article II, Section 2, be appointed by the President with senatorial
confirmation unless Congress has vested their appointment in the President alone,
in federal courts, or in heads of departments. [Buckley v. Valeo, 424 U.S. 1 (1976)]
Recess Appointments
The Recess Appointments Clause of the Constitution gives the President the power to
make appointments for vacancy without Senate approval during any Senate recess of
“sufficient duration.” Under the Clause, the Senate is in recess only when it states it is
in recess. If the Senate does not declare a recess and it holds pro forma sessions, the
Senate is not in recess and the President has no power to make appointments without
Senate approval. [NLRB v. Canning, 573 U.S. 513 (2014)]
Removal
As to removal of appointees, the constitution is silent except for ensuring tenure of all Article III judges “during good behavior”
Removal: By President
Under the Court’s decisions, the President probably can remove high level, purely
executive officers (e.g., Cabinet members) at will, without any interference from
Congress. However, after Morrison v. Olson, supra, it appears that Congress may
provide statutory limitations (e.g., removal for good cause) on the President’s
power to remove all other executive appointees.
Removal: By Congress - Limitation on Removal Power
Congress cannot give itself the power to remove an officer charged with the
execution of laws except through impeachment. A congressional attempt
through legislation to remove from government employment specifically
named government employees is likely to be held invalid as a bill of attainder.
Removal: By Congress - Limitation on Powers of Removable Officers
Congress cannot give a government employee who is subject to removal from
office by Congress any powers that are truly executive in nature. For this
reason, Congress could not give to the Comptroller General (who could be
removed from office not only by impeachment but also by a joint resolution of
Congress) the function of establishing the amount of automatic budget reductions
that would be required if Congress failed to make budget reductions
necessary to insure that the federal budget deficit did not exceed a legislatively
established maximum amount. [Bowsher v. Synar, 478 U.S. 714 (1986)]
Presidential Pardons
The President is empowered by Article II, Section 2, “to grant reprieves and pardons for
offenses against the United States, except in cases of impeachment.” This power has been
held to apply before, during, or after trial, and to extend to the offense of criminal contempt, but not to civil contempt, inasmuch as the latter involves the rights of third parties. The
pardon power cannot be limited by Congress, and includes power to commute a sentence on
any conditions the President chooses, as long as they are not independently unconstitutional.
[Schick v. Reed, 419 U.S. 256 (1974)]
Veto Power: Congress may override veto by ______ vote
two-thirds
How many days does the President have to Veto?
10 days (excepting sundays)
What happens if the President does not veto a bill within 10 days?
- the bill becomes law if Congress is still in session
2. the bill is automatically vetoed if Congress is not in session (a pocket veto)
Does a brief recess during an annual session create an opportunity for a pocket veto?
No.
Line Item Vetoes are ___________
unconstitutional.
The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part (through a line item veto) and approve other parts. Rationale: The President’s veto power does not authorize him to amend or repeal laws passed by Congress. [Clinton v. City of New York, 524 U.S. 417 (1998)]
Power as Chief Executive
The President’s power over internal (i.e., within the United States) affairs as the chief executive
is unclear. Clearly the President has some power to direct subordinate executive officers,
and there is a long history of presidents issuing executive orders. Perhaps the best guide for
determining the validity of presidential actions regarding internal affairs can be based on
Justice Jackson’s opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952):
(i) Where the President acts with the express or implied authority of Congress, his
authority is at its maximum and his actions likely are valid;
(ii) Where the President acts where Congress is silent, his action will be upheld as long
as the act does not take over the powers of another branch of the government or
prevent another branch from carrying out its tasks [see, e.g., United States v. Nixon,
I.E.7.b., supra—President’s invocation of executive privilege was invalidated because
it kept federal courts from having evidence they needed to conduct a fair criminal
trial]; and
(iii) Where the President acts against the express will of Congress, he has little authority and
his action likely is invalid.
Power as Executive Chief: No Power to Impound and the Take Care Clause
It follows from the above that the President has no power to refuse to spend appropriated
funds when Congress has expressly mandated that they be spent. [Kendall
v. United States ex rel. Stokes, 37 U.S. 524 (1838)] Some authorities base this result
on Article II, Section 3, Clause 4—the Take Care Clause—which provides that the
President “shall take care that the laws be faithfully executed . . . .”
Power over external affairs: War
Although lacking the power to declare or initiate a “formal” war, the President has extensive military powers (essentially an external field, although applicable to civil war as well and to many domestic affairs caught up in military necessities).
