Executive Power Flashcards
Powers over internal affairs
President’s powers over internal affairs are unsettled, but among them is the express power and duty to faithfully execute the laws
Inherent or implied power
Some implied power to direct subordinate executive officers and obvious power to issue executive orders
Best guide to inherent or implied powers depends on Congress’ grant of authority
Inherent or implied power - authority of Congress
President acts with the express or implied authority of Congress, presidential authority is at its max and actions are likely valid
Inherent or implied power - Congress is silent
Acts where Congress is silent, constitutionality is uncertain and Court will consider the circumstances and relevant history
Unlikely to be upheld if it usurps the power of another governmental branch or prevents another branch from carrying out its tasks
Inherent or implied power - against Congress
If the president acts against the express will of Congress and Congress had authority to act, then the action likely is invalid
Power to impound
President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent
Appointment powers
President appoints ambassadors, justices of the SC, and other officers of the US whose appointments are not otherwise provided for in the Constitution, with the advice and consent of the Senate
Congress can vest the appointment of inferior officers in the President alone, the courts, or the heads of departments
- but Congress itself cannot appoint members of a body with administrative or enforcement powers
Removal of appointees - by President
Can remove high level, purely executive officers 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 exercises substantial discretion
But Congress can provide statutory limitations on the President’s power to remove all other executive appointees
Removal of appointees - by Congress
Congress can remove executive officers only through the impeachment process
Pardons
President may grant pardons for all federal offenses but not for impeachment or civil contempt
Pardon power can’t be limited by Congress
Veto power
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
But line item vetoes are unconstitutional
Pocket veto
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 in session, bill becomes law
War
No power to declare war
But as commander in chief, can act militarily in actual hostilities against the US without a congressional declaration of war to protect American lives and property
- but Congress may limit the president
Challenges to President’s conduct as commander in chief are likely to be viewed as nonjusticiable political questions
Foreign relations
President has paramount power to represent the US in day-to-day foreign relations
Treaty power
President has the power to enter into treaties with the consent of two-third of the senate
President negotiates and congress approves
Treaties and supreme power
Like other federal law, treaties are the supreme law of the land if they are self-executing
- effective without any implementation by Congress
So state laws that conflict with a self-executing treaty are invalid
President generally does not have any independent power to issue a memorandum ordering compliance with a treaty that isn’t self-executing
Conflict between federal law and valid treaty
A conflict between a congressional act and a valid treaty is resolved by order of adoption
The last in time prevails
But treaties are inferior to the constitution
Executive agreements
Signed by the President and the head of a foreign country
Can be used for any purpose that treaties can be used for
Do not require the consent of the Senate
Constitution > federal law > executive agreements > state law
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
Exception
Executive privilege - exception
In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated
President is subject to state criminal subpoenas of the President’s personal records - such records do not fall under the executive privilege
Executive immunity
The president has absolute immunity from civil damages based on any action taken while exercising official responsibilities
- but no immunity for acts that allegedly occurred before taking office
If presidential aides have exercised discretionary authority in a sensitive area, they can share in the immunity for suits brought concerning that area
Impeachment
President, vice president, and all civil officers of the US are subject to impeachment
Grounds include treason, bribery, and high crimes and misdemeanors
A majority vote in the house is necessary to bring impeachment charges and ⅔ vote in the Senate is necessary to convict and remove from office
