Executive Power

Question 1

Powers over internal affairs

Answer 1

President’s powers over internal affairs are unsettled, but among them is the express power and duty to faithfully execute the laws

Question 2

Inherent or implied power

Answer 2

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

Question 3

Inherent or implied power - authority of Congress

Answer 3

President acts with the express or implied authority of Congress, presidential authority is at its max and actions are likely valid

Question 4

Inherent or implied power - Congress is silent

Answer 4

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

Question 5

Inherent or implied power - against Congress

Answer 5

If the president acts against the express will of Congress and Congress had authority to act, then the action likely is invalid

Question 6

Power to impound

Answer 6

President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent

Question 7

Appointment powers

Answer 7

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

Question 8

Removal of appointees - by President

Answer 8

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

Question 9

Removal of appointees - by Congress

Answer 9

Congress can remove executive officers only through the impeachment process

Question 10

Pardons

Answer 10

President may grant pardons for all federal offenses but not for impeachment or civil contempt

Pardon power can’t be limited by Congress

Question 11

Veto power

Answer 11

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

Question 12

Pocket veto

Answer 12

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

Question 13

War

Answer 13

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

Question 14

Foreign relations

Answer 14

President has paramount power to represent the US in day-to-day foreign relations

Question 15

Treaty power

Answer 15

President has the power to enter into treaties with the consent of two-third of the senate

President negotiates and congress approves

Question 16

Treaties and supreme power

Answer 16

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

Question 17

Conflict between federal law and valid treaty

Answer 17

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

Question 18

Executive agreements

Answer 18

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

Question 19

Executive privilege

Answer 19

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

Question 20

Executive privilege - exception

Answer 20

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

Question 21

Executive immunity

Answer 21

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

Question 22

Impeachment

Answer 22

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