Executive Power Flashcards
Congress enacts a law establishing a new federal agency led by a five-person commission to set federal privacy policies for technology companies. Each commissioner is appointed by the President and confirmed by the Senate and can only be removed from office prior to the expiration of their 11-year terms “for cause.” The new agency is led by a chief officer, who is appointed by the commissioners and can only be fired by the commissioners for “good cause.” If the process for appointing and removing the chief officer is subject to a constitutional challenge, a reviewing court is likely to hold that the process is:
Unconstitutional, because the process places unconstitutional limits on the President’s ability to control or supervise the executive branch.
Congress passed a controversial bill regulating firearms. The bill’s constitutionality was questioned, and the bill was challenged in court. Ultimately, the Supreme Court upheld the provision. A sunset provision in the original bill meant that Congress had to reauthorize the bill every two years. The first time the bill was up for reauthorization, the President vetoed it. His veto message asserted that the measure was unconstitutional. Is the President’s action constitutional?
Yes, because the president is exercising discretion committed to him by the Constitution.
Congress passes legislation that appropriates foreign aid in the form of disaster relief and delegates power to the President to release the aid to foreign countries at his discretion. In deciding whether and how much aid to release, the legislation instructs the President to consider “the scale of the disaster in humanitarian terms” and the “state of relations between the recipient and the United States.” Is the delegation of power to the President constitutional?
Yes, because the legislation furnishes an intelligible principle
Congress passes, and the President signs, a bill allowing Congress to retain some authority over executive agencies. If both houses of Congress, by majority vote, object within ten days of the announcement of a new agency regulation, those regulations do not go into effect. Is such a law constitutional?
No, because the law violates separation of powers principles.
Congress recently passed an immigration reform bill that provides a “path to citizenship” for unauthorized migrants, as long as they have continuously resided in the country for at least ten years, not been convicted of a crime while in the country and have not tax liabilities. Those who had been convicted of any federal or state crime, however, are to be denied any protections under the law such that they would still be subject to deportation by Immigration and Customs Enforcement (ICE). The President criticized this portion of the bill and issued an Executive Order that instructed the head of ICE not to deport unauthorized migrants convicted of either misdemeanors or non-violent felonies, who otherwise merited protection under the law. As originally drafted, the bill gave the President discretionary power to halt deportations, but that provision was removed from the final version. Several state governors who claim their states have high numbers of unauthorized migrants, sue the President over his order. A reviewing court would most likely:
Find for the governors, because the President is acting in direct opposition to the expressed will of Congress.
Country A underwent a violent civil war in which opposing sides were made up of ethnic groups that had comprised the country’s population. One group managed to establish de facto control of a third of Country A and declared themselves to be the State of B, with a government, social services, and the like. The President of the United States instructed the State Department to recognize the State of B as a sovereign country and to open an embassy there. When the civil war began, however, Country A had lobbied Congress for legislation that declared the policy of the United States not to recognize any state claiming to exercise sovereignty over any part of Country A. The President sought a declaratory judgment in federal court that the law was unconstitutional. If a judge found in favor of the President, it would likely be because:
Congress may not interfere with the President’s power to recognize foreign governments.
In 1989, Congress enacted a law providing that “no limitations on the sale of genetically modified food may be imposed by the United States except by an act of Congress.” Last year, after a serious public health scare related to genetically modified vegetables, Congress adopted a new law authorizing the President to take “any necessary and appropriate action to protect the safety and security of the national food supply.” Five days after the law was enacted, the President issued an executive order “pursuant to her executive powers under Article II” that severely restricts the production or sale of genetically modified food within the United States for a 90-day period until their safety can be assured.” In the weeks after the executive order, Congress took no action to endorse, overrule, or condemn the President’s executive order. A manufacturer of genetically modified food, filed suit alleging that the President exceeded her Article II powers when she issued the executive order. A reviewing court is most likely to hold that the executive order is:
Constitutional, because Congress explicitly or implicitly approved of the President’s actions.
In an effort to reform federal criminal justice policy, Congress enacts an Act, a federal statute that would allow the President to refuse to sign into law any individual provision contained within a federal criminal justice statute if the President determines that the provision would “not serve the nation’s best interests.” Under the Act, the statute in question would go into effect once the President signs it into law with the exception of the invalidated provision. A reviewing court would most likely find the Act:
Unconstitutional, because the law violates Article I, Section 7’s procedural requirements.
In response to a terrorist attack on American soil, the President dispatches troops to a foreign country to eliminate the bases from which those terrorists had planned and trained for the attack. After several months of combat, Congress, unhappy with the progress of the operation, establishes a “Committee on the Conduct of the War,” which issues a report calling for generals to be fired, troop levels to be increased, and tactics to be changed. The report forms the basis for legislation instructing the President to carry out the report’s recommendations. The President refuses, and members of Congress sue over his refusal. If a reviewing court invalidates the statute, it would likely be because:
The statute infringes on the President’s powers as Commander-in-Chief.
In response to complaints about a rash of mergers between U.S. and foreign companies driven by a desire to avoid the United States’ high corporate tax rate, Congress authorized the director of the Internal Revenue Service to appoint a board of three experts who would review proposed mergers for business purpose. If the merger is found to be for a valid business purpose it is allowed to proceed. If, however, the board finds that the merger’s main purpose is to minimize the payment of taxes, the corporation is subject to a one-time tax on earnings that can equal many millions of dollars. The members of the board, moreover, cannot be removed except for cause, and then only by the director of the IRS. A pharmaceutical company’s proposed merger with a foreign company was found to be primarily for the purpose of reducing the pharmaceutical company’s tax bill and taxed accordingly. The pharmaceutical company sues, claiming that the appointment of the board was unconstitutional because the members were not appointed by the President and confirmed by the Senate. Are the appointment and removal provisions for the board constitutional?
Both the appointment and removal provisions are constitutional.
In response to concerns that the government’s efforts to mitigate climate change need coordination, Congress creates the Department of Climate Change Coordination, headed by a secretary of Climate Change who is appointed by the President and confirmed by the Senate. The enabling legislation details the risks associated with climate change and instructs the secretary to promulgate regulations that will ensure coordination across governmental departments and create uniform policies that will “aid in the mitigation of climate change.” The policy coordination results in new restrictions placed on the operation of coal-burning power plans. A coal mining company whose plants are affected by the new regulations, sues in federal court, alleging that the regulations issued by the Department are unconstitutional. A reviewing court should find for:
The Department, because the act contains an intelligible principle that limits the Department’s discretion.
In response to international pressure, the United States Congress recently voted to close “black sites” around the world where high-value detainees suspected of terrorism are held and relocate their occupants to the United States for trial or to be released. Congress gave the director of Homeland Security the authority to review individual cases and, if the director certifies that the detainee is no longer a danger to the United States or its citizens, release the detainee to his home country or any other country willing to take him. However, under the legislation, if one house of Congress expresses disagreement with the director by passing a resolution, the detainee may not be released. One of the detainees whose release was held up because of a House resolution expressing disapproval of the director’s decision sues in federal court alleging that his continued detention is unconstitutional. A judge hearing the case should rule:
For the detainee, because the resolution did not meet the Constitution’s bicamerality and presentment requirements.
Recently, Congress established a committee within the Department of Defense to recommend areas where cuts could be made in the defense budget. According to the legislation, the committee—composed of individuals nominated by the President, the Speaker of the House, and the President of the Senate—makes recommendations, which then are subject to an up-or-down vote in Congress. No amendments are permitted to the recommendations. The goal is to make decisions unclouded by political considerations. After the first round of cuts were voted upon, a contractor whose project was cancelled on recommendation of the committee sued, claiming that the committee was unconstitutional. A reviewing court should:
Find for the contractor, because the committee’s composition violated the Appointments Clause.
The United States recently began normalizing relations with Cuba. When Fidel Castro took over in 1959, the government expropriated businesses and property—much of which was owned by U.S. citizens. At present, there are around 6,000 claims pending against Cuba now worth nearly $7 billion. As part of the normalization process, the President negotiates an executive agreement with Cuba. He does not submit it to Congress for approval. Under the agreement, businesses and individuals with claims against the country will receive neither cash nor bonds but will receive economic development incentives—like tax exemptions—for reestablishing businesses in the country. The President’s executive agreement is counter to a law passed by Congress requiring that all such claims be settled for cash or its equivalent. One of the businesses having claims against Cuba sues, citing the congressional statute. A reviewing court should rule for:
The President, because he has the power to settle claims with foreign countries using executive agreements.
