Executive Power Flashcards
Youngstown RULE
under the Sep of Power Doctrine –> Prez may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution.
Youngstown elaboration
Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress
AND the prez has certain implied powers not expressly listed on the Con
Youngstown Test
Lowest Ebb/Weakest authority
Prez acts contrary to express or implied will of congress & the Con is silent –> prez authority is at its lowest
However, Prez’s action upheld only if Congress’ act is unconstitutional
Youngstown Test
Zone of Twilight/Concurrent authority
Prez acts in absence of congressional grant/denial –> thus relys on independent power.
Thus, the constitutionality of prez independent power depends on the imperative of events
Youngstown Test
Strongest authority
Prez acts pursuant to implied or express congressional authorization.
thus action is presumed valid.
when applying Youngstown test to facts…
say…“congress will assert that…”
then say…“prez will assert that…”
Non-delegation Doctrine RULE
prohibits Congress from delegating its constitutional powers to another branch of government.
Non-delegation Doc EXCEPTION
if Congress has provided sufficiently intelligible principles to guide their exercise –> the
delegation will be permitted
Non-Delegation Doc on Prez’s Foreign powers
does not bar Congress from delegating great authority and discretion to the President in foreign affairs.
CL United States v. Curtiss-Wright Export Corp RULE
Foreign Affairs
The federal government inherently has broad implied powers in foreign affairs, and the executive is the primary repository of such powers.
Foreign Affairs
Recognition
formal acknowledgment of an effective government for a territory.
● The President has the power to recognize a sovereign nation through the Reception Clause under Article 2 (the
president shall receive ambassadors and dignitaries) .
Prez Foreign Policy Power
Commander in Chief RULE
○ Although the Pres is commander in chief of the military (Article II Clause 1), only Congress may declare war = war power (Article I Section 8)
■ Congress can make rules for military, fund any wars,
○ Pres may take military action w/o a declaration of war in the case of actual hostilities first happen against US before Prez retaliates
What test is applied to the Prez Foreign Policy Power?
○ Applies Justice Jackson Test to find authorization for war carries with it implied authorization to do anything authorized by the law of war.
War Power Resolution RULE
a federal law that requires the President to communicate to Congress the committal of troops within 48 hours and to remove all troops after 60 days if Congress has not granted an extension
Prez Foreign Policy Power
Treaty
○ Pres has the exclusive power to negotiate (enter into) treaties (agreement) with foreign countries requiring senate approval (2/3) vote to enter treaties but not to void them
■ Conflict b/w a treaty and federal statute:
○ The one adopted last in time controls
○ OR since treaty is fed law which is supreme over state law–>treaty supersedes state law
Treaty continued…
Rescission on treaties
The President can rescind treaties without worrying about judicial invalidation.
Prez Foreign Policy Power
Executive Agreements
○ Agreement between the US & a foreign country & is effective when signed by the Pres & the head of the other gov without required Senate approval
○ Prevail over State law
○ Valid federal statutes passed subsequently can override them
○ Make sure Exec Agreements do not violate follow fed statute/congress implied power and does not violate the Con
Executive Privilege
What is it?
§ at CL, its the implied power in which the prez has a privilege to keep certain communications secret but the claim for exec privilege is not absolute
§ Yet national security secrets are given greatest deference
Exec Privilege Sources
- Sep of Power Doc
- AND the inherent need to protect the confidentiality of executive communications.
Executive Privilege
Balancing Test RULE
○ Must weigh/balance the competing interests general privilege of confidentiality of prez communications in prez duties against the fair administration of criminal justice
Executive Immunity
What is it?
For official acts, President may be disciplined by impeachment, not by private lawsuits for damages. For non-official acts, he is subject to the laws for his purely private acts.
Court rejects absolute immunity
Exec Immunity RULE
1) The President may be disciplined principally by impeachment, not by private lawsuits for damages.
2) But he is otherwise subject to the laws for his purely private acts.”
Exec Immunity RULE elaborated
o President has absolute immunity for civil ($$$) damages based on any action he took within his official responsibilities as President
o Even if the suit alleges
intentional wrong doings & intentional violations of the law
o Applies to sitting & past presidents, however, no immunity applies for acts that occurred before office.
Impeachment LNG & RULE
on Executive Power overall
● Article 2, Section 4–>The Pres, VP & all civil officers of shall be removed from office by impeachment for conviction, treason, bribery, high crimes & misdemeanors
● Article 1 section 2–>House has the sole power to impeach.
Majority vote in the House is necessary to invoke the charges of impeachment
● Article 1, section 3–>senate has sole power to try impeachment & a 2/3 vote in the Senate suffices to convict & remove
Appointments Power
Appointment Clause LNG
Article 2, section 2–>Prez shall nominate and by and with the advice & consent of the senate shall appoint …. all other officers…but Congress may vest appt of such inferior officers
Appointment Power
principal/superior Officer RULE
1) President Selects
2) AND with the Senate’s Advice & Consent
President can fire for anything (at the will of the President)!
● Congress cannot place restrictions on the President’s power to remove executive officers that would
“impede the President’s ability to perform his constitutional duty”.
● When an officer acts in a purely executive function, the President may need to be able to control them
to do his job.
Appt Power
Inferior Officer RULE
Congress may allow the President, Department Heads, or Judiciary selects inferior officer
-But Congress can never appoint
-Also, congress can place impediments to the President firing them because they do not necessary
impede the President’s ability to do his job.
Test to determine if officer is Superior or Inferior
all or most factors need to be met to be inferior officer
- Whether the officier can be removed by a higher Executive branch official?
- Whether the officer has limited duties and powers.
■ No policymaking function. - Whether the officer has limited jurisdiction given by the Special Division.
-under a dept/agency head - Whether the office is limited tenure.
Quasi-Judicial/Legislative Officers
what are they?
an officer where some aspect of what they are doing is judicial or legislative in nature, but not apart of those branches. Different from what the president is charged with carrying out (executive functions).
● Congress can limit the President’s removal power with respect to quasi-legislative or quasi-judical officers who are appointed to carry out legislative policies.
● When an officer operates in a quasi-legislative or quasi-judicial role, independence from the President is unlikely to be a major problem.
Removal Power
what is it?
The president may remove executive officials unless removal is limited by statute.
Congress, by statute, may limit removal both if it is an office where independence from the president is desirable and if the law does not prohibit removal but, rather, limits removal to instances where good cause is shown.
Removal Power LNG
Article 2 section 4 states thatall civil Officers of the United States” may be impeached for treason, bribery, or other high crimes and misdemeanors
OR under Myers v. US, the president has inherent authority to remove executive officers without cause or congressional approval
Removal Power
where does the power lie?
Removal of someone from an appointed position is split between Congress and the President in the following 4 manners
Removal Power type
Purely executive officers appointed by the President (e.g. cabinet member) may be removed only by the President…..
….when the cabinet member is principal (superior) officer.
● HOWEVER, if the appointee is an inferior officer (e.g. special prosecutor), Congress may limit the President’s removal power if such limitations do not interfere with the President’s ability to perform his constitutional duties.
Removal Power type
If Congress vests appointment power in some official other than the President….
…Congress may regulate and limit removal.
Removal Power type
If the official is quasi-legislative or quasi-judicial (e.g. FTC commissioner)…..
….normally the President holds the removal power, HOWEVER, Congress may limit or completely block the President’s right of removal for these officiers
Removal Power type
If the executive department in question has administrative regulations governing employee removal…..
….the department must follow those regulations (although it can always change the regulations)
Lawsuits dealing with executive power are…
….often non-justiciable
If president vetos and congress is in session–>
…Bill becomes law
