Exercise of Executive Authority Flashcards
Article II, Section 2
Power to nominate, with the advice and consent of the Senate, Ambassadors, other public Ministers and Consuls, Judges of the supreme court, and all other Officers of the United States, but the Congress may vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have the Power to fill all Vacancies during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Three categories for non-elected federal officials
- Principal officers
- Inferior officers
- Employees
Principal officers
require advice and consent of the Senate to be appointed
Inferior officers
Congress may decide how these officials are appointed
Employees
the Appointments Clause of the Constitution does not address or restrict the appointment or mere employees
Court definition of “officer”
A position that includes any appointee exercising significant authority pursuant to the laws of the U.S.
Court definition of “employee”
Lesser functionaries who are subordinate to officers of the U.S. Those who hold jobs in which they do not exercise significant authority. Employees implement rather than make policy, and are supervised by persons far down in the executive hierarchy. The lack of significant authority is dispositive.
Analysis to classify a position as a principal or inferior officer
- Amount of independence and source of supervision;
- Nature of the official’s duties, and if they include policy-making functions; and
- Jx and tenure of the position
Myers v. U.S.
The President’s power to remove purely executive officers cannot be restricted by Congress. The power of removal is incident to the power of appointment.
Humphrey’s Executor v. U.S.
Whether the President has the power to remove an officer, over the power of Congress to condition the power by fixing terms and precluding removal except for cause, depends on the character of the office
Morrison v. Olson
The imposition of a good cause requirement doesn’t impose on executive authority. President’s need to control independent counsel not central to functioning of executive branch, and thus doesn’t need to be removable at will by President
Foreign policy
Excluding the specific powers granted to Congress that touch on foreign policy (e.g., approving treaties, regulating foreign commerce, declaring war, etc.), all “external” powers are vested in the President. The President alone has the power to deal with foreign governments.
Internal v. External Powers
The statement that the federal government can only exercise the powered enumerated in the Constitution applies only to domestic affairs.
Powers not enumerated in the Constitution are reserved to the states or to the power, except international powers, making the handling of external affairs an implied power of the federal government.
U.S. v. Curtiss-Wright Export Corporation
President’s foreign/external powers are implied from Article II, and does not need Congress to give him power to be the representative on the world stage.
No delegation of power from Congress is needed because the power is already vested in the President. President vested with all authority traditionally available to any head of state in foreign relations, except where the Constitution limits that authority or places it in Congress
Treaty Power
President has the power to make treaties. Senate must approve the treaty with a 2/3 vote, and after receiving the approval of the Senate, the President may ratify the treaty.
Senate has the power to modify treaties submitted for approval. President not obligated to ratify Senate’s amended version.
