Executive Power Flashcards
Where does the president get his power?
Presidential power derives from Article II.
What power does the President have as chief executive?
The President’s powers over internal affairs are unsettled, but among them is the express power and duty to faithfully execute the laws under Article II, Section 3, Clause 4 (the Take Care Clause). Clearly the President has some implied power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders. Perhaps the best guide to presidential claims of inherent or implied power is as follows:
• If the President acts with the express or implied authority of Congress, presidential authority is at its maximum and the actions likely are valid.
• If the President acts where Congress is silent, the constitutionality of the action is uncertain, and the Court will consider the circumstances and any relevant history. The act is unlikely to be upheld if it usurps the power of another governmental branch or prevents another branch from carrying out its tasks.
• If the President acts against the express will of Congress and Congress had authority to act, then the action likely is invalid.
Does the president have the power to impound?
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. Some authorities base this result on the Take Care Clause.
What are the presidents appointment powers?
The President appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the Constitution, with advice and consent of the Senate. Congress, however, can vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers
What is the process of the removal of appointees?
(1) By President: The President can remove high level, purely executive officers (for example, Cabinet members) at will, without any interference by Congress. Congress also cannot restrict the President from removing the head of an independent agency if that person is the sole director and has significant executive power. However, Congress can provide statutory limitations (for example, removal only for good cause) on the President’s power to remove all other executive appointees.
(2) By Congress Congress can remove executive officers only through the impeachment process.
How does the presidents pardon power work?
The President may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power can’t be limited by Congress.
How does the veto power work?
If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house. As indicated, though, line item vetoes are unconstitutional. (See Section 3.3.1., supra).
What is a pocket veto?
The President has 10 days to exercise the veto power. If the President fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.
Can the president declare war?
The President has no power to declare war (only Congress does), but the President, as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property. However, Congress, under its power to enact a military appropriation, may limit the President. Challenges to the President’s conduct as commander in chief are likely to be viewed as nonjusticiable political questions.
What is the presidents power when it comes to foreign relations?
The President has paramount power to represent the United States in day-to-day foreign relations.
What is the presidents treaty power?
The President has the power to enter into treaties with the consent of two-thirds of the Senate?
What authority do treaties hold?
a. Supreme Law
Like other federal law, treaties are the “supreme law of the land” if they are self-executing (that is, effective without any implementation by Congress). State laws that conflict with a self-executing treaty are invalid. Note that the President generally doesn’t have any independent power to issue a memorandum ordering compliance with a treaty that isn’t self-executing. Example: The Supreme Court ruled that the President could not enforce provisions of the Vienna Convention (a non-self-executing international treaty) by issuing a memorandum requiring states to grant certain habeas corpus petitions of foreign nationals who were not informed at the time of their arrest that they had a right to notify their consulate under the Convention.
b. Conflict with Federal Laws
A conflict between a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails.
c. Conflict with Constitution
Treaties are inferior to the Constitution; a treaty may not be inconsistent with the Constitution.
What are executive agreements?
Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent
of the Senate.
What authority do executive agreements hold?
a. Conflict with State Laws
If a state law conflicts with an executive agreement, the agreement prevails.
b. Conflict with Federal Laws
If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
What is the executive privilege?
The President has a privilege to keep certain presidential communications secret so that the President can receive candid advice and protect national security. National security secrets are given great deference by the courts.
