Executive power Flashcards
source of potus power
article II
express power of president over internal affairs
power and duty to faithfully execute the laws (take care clause)
analysis of when assertion of implied power is more or less likely to succeed
claim of implied power strongest when authorized by congress, expressly or impliedly [likely valid exercise]
if president acts where congress is silent on the action, president is operating in constitutional “twighlight zone” — if action is supported by history or necessity and if it does not usurp power from another branch, action will likely be upheld
If the President acts against the express will of Congress and Con- gress had authority to act, then the action likely is invalid.
president’s domestic powers
appointment
removal
pardons
veto
what is the 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.
Power to impound?
no
President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent.
executive appointment power
appoint high level officials with advice and consent of the senate
can appoint inferior officers if Congress vests power to appoint in potus
executive removal power
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.
pardon power
The President may grant pardons for all federal offenses but not for impeachment (i.e. actually convicted and thrown out of office) or civil contempt.
pardon does not have to be for specific offenses, it can be a blanket pardon
pardons can be granted for crimes occurring while potus is in office or not in office
who is eligible:
- federal offender
- person threatened with federal charges
(must have relationship to the feds; CANNOT pardon state offenders)
- federal official who has been indicted by federal grand jury and left the country
foreign powers
commander in chief
foreign relations
treaty power
what is the commander in chief power
Act militarily in actual hostilities against the United States without a congressional decla- ration of war to protect American lives and property
discretion to deploy troops to further American interests
no power to declare war
why are we not gonna know about Challenges to the President’s conduct as commander in chief ?
Challenges to the President’s conduct as commander in chief are likely to be viewed as nonjusticiable political questions.
treaty power
negotiated by potus
approved by 2/3 senate
what is a self-executing treaty
effective without any implementation by Congress
heirarchy of laws
1 constitution
2 treaties and federal statutes
[if these conflict, apply the “last in time rule”]
3 executive agreements
4 state law
if federal law and treaties conflict, what do to do
apply last in time rule
— later law trumps earlier law
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.
if executive agreement conflicts with federal law, which prevails?
federal law prevails over EA
executive privilege
The President has a privilege to keep certain presidential communi- cations secret so that the President can receive candid advice and protect national security. National security secrets are given great deference by the courts.
exception to exec privilege
In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demon- strated.
Furthermore, the President is subject to state criminal subpoenas of the President’s personal records—such records do not fall under the executive privilege.
executive immunity
absolute immunity from civil damages based on any action taken while exercising official responsibilities
impeachment grounds
treason
bribery
high crimes
misdemeanors
how to impeach
A majority vote in the House is necessary to bring impeachment charges
A two-thirds vote in the Senate to convict and remove from office
when can congress subpoena the president’s personal records
when it can establish that the subpoena advances a legitimate legislative purpose
