Constitutional Law: Relationship Between the Different Branches of the Federal Government (Separation of Powers)

Question 1

Executive Powers (generally): Does the President have the power to make law?

Answer 1

If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights), use the following test:

i. if Congress has explicitly or implicitly approved the president’s action, the president has the full power of federal government to make law
ii. if Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?)
iii. if Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional

Question 2

Executive Powers (generally): Impoundment of Funds

Answer 2

If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound

Question 3

Executive Powers (Special Rules): May Congress increase the executive’s power to make law?

Answer 3

Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making

Question 4

Executive Powers (Special Rules): Legislative vetoes

Answer 4

A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto

Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause

Question 5

Executive Powers (Special Rules): A federal statutory line-item veto

Answer 5

A federal statutory line-item veto is unconstitutional

Question 6

Executive Powers (Special Rules): Appointment of executive officials

Answer 6

for principal officers (e.g., cabinet members), the president nominates and the senate confirms

for inferior officers (positions created by Congress, such as the independent counsel), Congress may give the appointment power to president alone, a department head, or the courts

Although Congress may appoint its own officers to carry on internal legislative tasks, Congress may not appoint anyone with administrative, enforcement, regulatory, or executive duties

Question 7

Executive Powers (Special Rules): Removal of executive officials

Answer 7

General Rule: the president may fire any executive official for any reason

Exception: Congress may require the president to have “good cause” to fire an employee of the executive branch if the position requires some independence from the president (e.g., an independent counsel or a person who has quasi-judicial duties)

Congress may not retain the power to remove an executive official; it only has impeachment power

Question 8

Foreign Affairs: Treaties and Executive Agreements

Answer 8

Treaties are signed by the President and ratified by the Senate

If laws are in conflict, the following preeminence governs:
• U.S. Constitution
• Federal Statutes/Treaties (last in time controls)
• Federal Executive Agreements/Orders
• Federal Regulations
• State Laws

The president may use executive agreements as substitutes for treaties; no senate ratification is required, and the president may use these agreements as the basis for issuing executive orders (domestic regulation)

The power to recognize foreign states lies exclusively with the president, and the President and his subordinates are the exclusive official representatives of the United States in foreign affairs

Question 9

Foreign Affairs: War Powers

Answer 9

The war powers are shared between the president and Congress; Congress declares war and allocates money for the military; the president alone controls troops and deployment

Question 10

Checks on the President’s Power: Criminal Prosecutions

Answer 10

The president is probably immune from criminal prosecution while in office

Executive Privilege: The president’s communications and papers are presumptively privileged, but the president must comply with subpoenas from criminal courts or grand juries

Question 11

Checks on the President’s Power: Civil Actions

Answer 11

The president has absolute immunity from civil liability for claims (at least those arguably based on official actions) arising while in office

• Presidential aids and advisors have a qualified immunity from civil damages; such immunity will not protect them for violations of clearly established constitutional rights

The President is subject to civil liability for claims arising prior to taking office

Question 12

Checks on the President’s Power: Impeachment

Answer 12

The president, vice-president, judges, and “officers” of the U.S. may be impeached

The house “impeaches” (i.e., indicts) by a majority vote; the senate convicts by a 2/3 vote

Impeachment may be for high crimes, misdemeanors or treason, but these terms are defined exclusively by Congress, and such issues are political questions

Question 13

President’s Pardon Power

Answer 13

The president has the power to pardon and commute sentences for federal crimes, but not state crimes or civil liability

The president’s pardon power may not be limited by Congress

The president may not pardon a person for “crimes” for which he or she has been “impeached”

Question 14

Speech and Debate Clause

Answer 14

The Speech and Debate Clause protects members of the U.S. Congress from criminal or civil liability for all statements (oral or written) they make in the House or Senate. The immunity extends to aides who engage in acts that would be immune if performed by the member of Congress.

Question 15

Speech and Debate Clause: Exceptions

Answer 15

1. The Speech or Debate Clause does not extend to state legislators.
2. Speeches and publications made outside of the House or Senate are not protected.