Executive Power Flashcards
Can executive privilege be invoked by former U.S. presidents?
Yes.
Can be used by former Presidents, but given less deference to sitting President
White House Counsel (Biden): “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
Is the President’s appointment power expressly mentioned in the Constitution?
Yes.
Art. II §2 [2]: Appointment power for President and Congress
+ Congress CAN vest that power in someone other than the President
+ Congress CANNOT vest that power in itself because Congress is specifically NOT listed in Art. II as a potential party
Why would we want President to have appointment power?
Those in charge should have a say in who they hire
+ Appointment: supervise, control, and direct
+ Officials under President’s appointment do what he wants the way he wants
Higher quality of appointments according to the framers?
Does the Constitution say much about the separation of powers and foreign policy
Not much.
+ Constitution says very little about foreign policy making
+ Framer’s intent of very negligible value here because military world is so different today
+ Art. I §8 à Congress can regulate commerce with foreign nations
+ Art. II à president = Commander-in-Chief AND can make treaties with 2/3 of senate
+ Conflict between Congress’ power to declare war and president’s authority as Commander-in-Chief
What are the differences between a treaty and executive agreement?
Treaty = agreement between US and foreign country
+ Negotiated by President
+ Effective only with 2/3 of Senate
+ Supreme Law of the land and prevail over state law
Executive Agreement = agreement between President and Head of another government
+ Effective when signed by both (no Senate ratification required)
+ Seem to be allowed for any purpose
+ Supreme law of the land prevailing over state law so states must comply
+ Never been struck down by SCOTUS as usurpation of senate’s treaty ratifying authority
+ Executive agreements not actually mentioned in Constitution but have been well established as constitutional and Court has always sided with president whenever there has been a challenge
When can a President declare war without Congress?
We don’t know…
+ Supreme Court doesn’t help answer because of unresolved political question justiciability disputes
+ Limited precedent: Prize Cases and single instance where president allowed to impose blockade during Civil War without Congressional decree
+ Unclear what constitutes a declaration of war sufficient for Article I
+ No sure about Congressional limits on President
When can the President act as Commander in Chief?
President can act as Commander-in-Chief only when
+ Declaration of War
+ Specific Statutory Authorization OR
+ National Emergency created by foreign attack
Do detainees have access to the courts?
Hamdi v. Rumsfeld – right re: due process and meaningful finding
+ American government has the authority to hold an American citizen apprehended in a foreign country as an enemy combatant
+ Due process must be accorded to American citizens detained in U.S. as an enemy combatant. Entitled to have habeas corpus petition heard in court. Balancing Executive Power and Individual Interests
Can the US President make laws?
No, the President has the power to enforce the law, not make it or break it
Generally speaking, the President’s power to enforce the law is strongest when…?
Authorized by statute
What powers are exclusively executive?
1) Pardon Power
2) Veto Power
3) Appointment and Removal of Executive Officers
4) Foreign Affairs
True or false: The President can pardon or commute a punishment for any/all state and federal offenses
False. Only federal offenses. Governors have a similar power for state offenses.
How many days does the president have to veto legislation?
10 days
Does the president have to provide a specific reason for vetoing legislation
No, but the president has to reject the whole piece of legislation (not able to veto provisions and accept other parts)
How can Congress override a presidential veto?
Required: 2/3 majority by both House and Senate
True or false: Only the president can hire or fire executive officers
True
BUT some senior officers (i.e., cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate.
True or false: the House has a power of rejection of executive officers
False. That is the Senate’s power.
How is an executive officer defined for the purposes of appointment and removal power?
Executive officer = anyone who takes action on behalf of the U.S.
Can Congress give executive power to any officer it can hire or fire?
No. Once the officer is under legislative control, any attempt to give the officer executive power is unconstitutional.
True or false: The President can declare ware and control the military
False. The President has control over the military decisions, but Congress has the exclusive power to declare war
AND Congress can cut off funding to military actions
To whom does impeachment apply?
Applies to executive officers (e.g., President, Vice President, cabinet officers, federal judges)
What is required for removal from office (i.e., impeachment)
1) Impeachment by House by a simple majority
2) Conviction by 2/3 vote by Senate
Do any penalties apply after an executive officer is impeached?
No, but but any individual removed from office is prohibited from holding future office.
True or false: If a statute unambiguously requires that certain funds be spent on certain purposes, then the President cannot refuse to do so.
True. There is no power to impound (withhold funds)
What is legislative veto? Is it constitutional?
When Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution
Unconstitutional
How can Congress override executive actions?
Change the law so the President has an opportunity to veto the new legislation.
Congress cannot evade the President’s guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.
When can Congress delegate its power to administrative agencies?
As long as there’s an intelligible principle re: the exercise of that power delegated.
What does the major questions doctrine say?
Special rule re: administrative decisions of economic and political significance.
Congress must clearly delegate the authority to the agency.
When (if ever) does the President have absolute immunity?
Absolute immunity of liability: official acts (broadly construed)
Does the President receive immunity for acts done prior to taking office?
NO
What is executive privilege and when can it be overridden?
Does not have to reveal confidential communications with presidential advisers,
outweighed by a specific demonstration of need in a criminal prosecution
Ex: U.S. v. Nixon
When (if ever) do judges have absolute immunity?
Absolute immunity for all judicial acts, BUT may be liable for non-judicial acts
What clause protects members of US Congress?
Speech/Debate clause: Senators, Congressmen and their aides cannot be prosecuted or punished for activities related to their official acts.
CANNOT be introduced into evidence
