Executive Power

Question 1

Can executive privilege be invoked by former U.S. presidents?

Answer 1

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.”

Question 2

Is the President’s appointment power expressly mentioned in the Constitution?

Answer 2

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

Question 3

Why would we want President to have appointment power?

Answer 3

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?

Question 4

Does the Constitution say much about the separation of powers and foreign policy

Answer 4

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

Question 5

What are the differences between a treaty and executive agreement?

Answer 5

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

Question 6

When can a President declare war without Congress?

Answer 6

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

Question 7

When can the President act as Commander in Chief?

Answer 7

President can act as Commander-in-Chief only when

+ Declaration of War
+ Specific Statutory Authorization OR
+ National Emergency created by foreign attack

Question 8

Do detainees have access to the courts?

Answer 8

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

Question 9

Can the US President make laws?

Answer 9

No, the President has the power to enforce the law, not make it or break it

Question 10

Generally speaking, the President’s power to enforce the law is strongest when…?

Answer 10

Authorized by statute

Question 11

What powers are exclusively executive?

Answer 11

1) Pardon Power
2) Veto Power
3) Appointment and Removal of Executive Officers
4) Foreign Affairs

Question 12

True or false: The President can pardon or commute a punishment for any/all state and federal offenses

Answer 12

False. Only federal offenses. Governors have a similar power for state offenses.

Question 13

How many days does the president have to veto legislation?

Answer 13

10 days

Question 14

Does the president have to provide a specific reason for vetoing legislation

Answer 14

No, but the president has to reject the whole piece of legislation (not able to veto provisions and accept other parts)

Question 15

How can Congress override a presidential veto?

Answer 15

Required: 2/3 majority by both House and Senate

Question 16

True or false: Only the president can hire or fire executive officers

Answer 16

True

BUT some senior officers (i.e., cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate.

Question 17

True or false: the House has a power of rejection of executive officers

Answer 17

False. That is the Senate’s power.

Question 18

How is an executive officer defined for the purposes of appointment and removal power?

Answer 18

Executive officer = anyone who takes action on behalf of the U.S.

Question 19

Can Congress give executive power to any officer it can hire or fire?

Answer 19

No. Once the officer is under legislative control, any attempt to give the officer executive power is unconstitutional.

Question 20

True or false: The President can declare ware and control the military

Answer 20

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

Question 21

To whom does impeachment apply?

Answer 21

Applies to executive officers (e.g., President, Vice President, cabinet officers, federal judges)

Question 22

What is required for removal from office (i.e., impeachment)

Answer 22

1) Impeachment by House by a simple majority

2) Conviction by 2/3 vote by Senate

Question 23

Do any penalties apply after an executive officer is impeached?

Answer 23

No, but but any individual removed from office is prohibited from holding future office.

Question 24

True or false: If a statute unambiguously requires that certain funds be spent on certain purposes, then the President cannot refuse to do so.

Answer 24

True. There is no power to impound (withhold funds)

Question 25

What is legislative veto? Is it constitutional?

Answer 25

When Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution

Unconstitutional

Question 26

How can Congress override executive actions?

Answer 26

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.

Question 27

When can Congress delegate its power to administrative agencies?

Answer 27

As long as there’s an intelligible principle re: the exercise of that power delegated.

Question 28

What does the major questions doctrine say?

Answer 28

Special rule re: administrative decisions of economic and political significance.

Congress must clearly delegate the authority to the agency.

Question 29

When (if ever) does the President have absolute immunity?

Answer 29

Absolute immunity of liability: official acts (broadly construed)

Question 30

Does the President receive immunity for acts done prior to taking office?

Answer 30

NO

Question 31

What is executive privilege and when can it be overridden?

Answer 31

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

Question 32

When (if ever) do judges have absolute immunity?

Answer 32

Absolute immunity for all judicial acts, BUT may be liable for non-judicial acts

Question 33

What clause protects members of US Congress?

Answer 33

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