Federal executive poewr Flashcards
Fed executive power– foreign policy
i. Treaties – agreements bw US and other countries negotiated by president and ratified by senate.
1. treaties prevail over conflicting state laws
2. if treaty conflict with fed statute, the one adopted last in time controls
3. if a treaty conflicts with the US constitution, it’s invalid.
4. But pres has a lot of power in realm of treaties to do stuff even if he may need congressional power.
ii. Executive agreement
1. agreement bw us and foreign country that is effective when sgned by pres and head of foreign nation.
a. no senat approval required.
2. may be used for any purpose—anything that can be done by treaty
3. prevail over conflicting state laws, never over fed laws or the constitution. therefore, less important than treaty (which may beat fed laws, depending on timing of the two)
iii. Limits on the recognition power—unconst for congress by statute to designate the capital of foreign country.
iv. pres has broad powers to use troops in foreign countries. never has been struck down by constituon.
Domestic executive affairs– appointment and removal power
- appointment power
a. pres appoints ambassadors, fed judges and officers of the us
i. approved by the senate
b. Congress may vest the appointment of inferior officer in the president, the heads of agencies or the lower federal courts
i. congress has discretion on who has power
ii. no definition of officers vs. inferior fficers
1. inferior officers are fireable.
c. congress may nnot give itself or its officers the appointment power.
i. cant create an agency with appointing power too itself
d. President may not make recess appts during intrasession recesses less than 10 days
- Removal—unless removal is limited y statute, pres may fire any exec branch office
a. Foor ex. Nixon removed special prosecutor
b. Congress can limit removal IF independence from pres is desirable (for ex. a special prosecutor into the exec branch
c. Congress cannot limit removal of the cabinet
d. congress cannot prohibit removal, can limit removal nly for good cause
Executive domestic powers, impeachment and removal
Ppres, VEEP and judges and officers of the US can be impeached for treason, bribery and high crimes and misdemeanors.
- impeachment doesn’t remove a person from office, need conviction
- Impeach by House requires a majority, Senate must convict but only with a 2/3 vote.
Pres immunity to civil suits
iii. pres has absolute immunity to civil suits for money damages. for any actions while in office. NO immunity for actions that occurred prior to taking office.
1. protects exercise of discretion in office
Pres executive privilege for presidential papers and conversations
iv. Pres has executive privilege for presidential papers and conversations, but must yield to overriding need.
1. US v Nixon—white house tapes during Watergate. court overruled privilege in this case
Pres pardon power
v. Pres has the power to pardon those accused or convicted of federal crimes
1. exception: if there’s been an impeachment. can’t be pardoned for offenses leading to impeachment.
2. can only pardon for federal crimes, not state law crimes
3. also can only pardon in criminal crimes.
a. for ex cant be civil contempt
Youngstown framework
a. Power as chief executive. Youngstown
i. If the president acts with the express or implied authority of Congress, authority is at his maxim and actions likely valid
ii. If President acts where Congress is silent, his action is upheld unless it usurps the power of another branch or stops another branch from carrying out its actions
iii. If pres acts against express will of congress, he has little authority and his action is likely invalid.
President and the Take Care clause
- pres has no power to refuse to spend appropriated funds if congress has expressly mandated they be sent. Take Care clause: “Pres shall take care that the laws be faithfully executed”
