Executive Powers

Question 1

the need for an energetic executive

Answer 1

Pres’ executive powers are not enumerated in Art 2 the same way that the leg and jud are

Pres must maintain some prerogative powers needed for vigorous leadership and protection from an overreaching legislature

Question 2

prerogative powers

Answer 2

executive’s power to act acc to their discretion, for the public good, w/o the prescription of the law, and sometimes even against it

Question 3

principal executive officers

Answer 3

any appointee exercising significant authority pursuant to the laws of the US

pres nominates, Senate advises/consents, pres appoints

pres may remove at will/unilaterally

Question 4

inferior officers

Answer 4

subject to removal by a higher exec officer. limited power, jurisdiction, and tenure

may be appointed by Pres, dept heads, judiciary, Congress

Pres may not remove if Congress has attached a for-cause removal provision OR IF are quasi-leg/quasi-jud officers (multi-committee/do not exercise strictly exec power)

Question 5

Congress may

Answer 5

• vest appt in pres alone, courts, or heads of depts
• add duties to an appointed officer w/o reappointment, as long as the additiional duties are germane to the office already held

Question 6

Congress may not

Answer 6

use any other methods of appts for principal inferior officers

Question 7

pres may not

Answer 7

use recess appt po9wer to appt an officer w/o Senate A/C to a vacant position during a 3-day Sen recess

Question 8

prosecutorial discretion

Answer 8

justification - if the pres may pardon after conviction, it logically follows that he should have the power to halt a prosecution before it commences

limited resources to prosecute every single violation

consider guiding principles

Question 9

4 principles that guide proper exercise of enforcement discretion

Answer 9

• enf decisions should reflect factors which are w/i enf agency’s expense
• enf decisions should be consonant w/congressional policy
• exec branch cannot consciously/expressly adopt a general policy that is so external as to amount to an abdication of its statutory responsibilities
• nonenf decisions are judicially unreviewable exercises of enf discretion when are made on a case-by-case basis (more likely to be discretionary and not dispensing/abdication)

Question 10

suspending and dispensing

Answer 10

pres has enforcement power, but stops at some point

suspending: suspending the enfmt of a law

dispensing: never enforcing a law
- Pres cannot do
- where there are specific rules to follow for an agency’s enfmt, the agency’s refusal to comply acts as an abdication

Question 11

foreign affairs power

Answer 11

pres exclusively holds power to recognize/not a foreign state and its territorial bounds

included w/reception clause

follows a spectrum: take care –> dispensing

Question 12

executive agreements

Answer 12

agreements between pres and foreign countries/officials that are not submitted to Sen for treaty confirmation

generally lawful as long as there is a promise to use exclusive exec power in a particular way in exchange for actions by foreign govts/officials

pres may commit US to conduct outside of purely exec power ONLY WHEN there is implied or express leg auth to take action

Question 13

war powers

Answer 13

WPR of 1973 limited pres’ ability to involve the US in war under 3 conditions
- acting w/in those bounds = YT 1
- acting out of bounds = YT 3

Question 14

when is unilateral pres authority allowed in war?

Answer 14

• full-scale war –> Congress must declare
• limited conflicts/imperfect war –> Pres may initiate

depends on whether the conflict is a war:
- absence/presence of ground troops
- anticipated nature/scope/duration of conflict
- can pres reasonably determine that initiating hostility would serve important national interests?