Federal Executive Power Flashcards
Does POTUS have constitutional immunity to defer prosecution for unofficial actions (taken before they get into office)? Clinton v. Jones (1997)
NO. POTUS should not be above the law; and isn’t concerned with potential flood of litigation against POTUS. Believes frivolous litigation will get thrown out before it causes problems and if not Congress can always provide protection.
What formal mechanisms exist to hold POTUS accountable? Informal?
- Civil suits
- Criminal Proceedings
- Impeachment
- Informal: pressure of public opinion, checks by congress
Does it violate the NDD when Congress delegates power to enforce a foreign resolution to POTUS? See Curtiss-Wright (1936)
No. POTUS is the sole rep of the nation in foreign affairs and is uniquely positioned to enforce foreign policy resolutions. POTUS needs discretion to act as necessary, especially in foreign policy decisions; thus, Congress’ delegation of executive authority to POTUS is valid and does NOT violate NDD.
This would likely be different if a domestic issue, because of what is enumerated in Const.
How are foreign policy and domestic affairs treated differently under the constitution?
Const. says very little about foreign policy decision making.
POTUS, as the sole organ of the nation in its external relations, has special authority over foreign affairs (to avoid embarrassment, to act in diplomatic secrecy etc…)
How are foreign policy and domestic affairs treated differently under the constitution?
Const. says very little about foreign policy decision making:
Art 1 Sec. 8 – grants Congress power to regulate with foreign nation, along with power to declare war, raise and support armies etc…
Art 2 – grants POTUS power to make treaties (with advice and consent from the Senate)
POTUS, as the sole organ of the nation in its external relations, has special authority over foreign affairs (to avoid embarrassment, to act in diplomatic secrecy etc…)
Is it constitutional, within the executive’s powers, to issue an order directing the Secretary of Commerce to take possession of and operate most of the nation’s steel mills? (Youngstown Sheet & Tube)
No! there is no express power in Const. for this sort of action, If there is no express authority, then it needs to be implicit from the aggregation of his Const. powers.
Here, this display of power is not explicit or implicit, and this seizure is legislative in nature and thus, an overstep of power; needs to stay in his branches lane
Models of Inherent Presidential Power
Model 1: No inherent power (POTUS may only act with constitutional or statutory authority)
Model 2: POTUS may act without constitutional or statutory authority so long as he or she does not usurp the powers of another branch.
Model 3: POTUS may act as long as he or she is not violating a constitutional or statutory provision (i.e. when Constitution / Congress are silent, POTUS may act unless Congress says to stop).
Model 4: POTUS may act unless he or she violates an explicit constitutional provision.
What is executive privilege?
Ability of the president to keep certain communications confidential – typically refers to maintaining secrecy with respect to conversations/memos with chief advisors to the president.
US v. Nixon (1978)
Is POTUS absolutely immune from judicial review?
No! It is the duty of the courts to say what the law is. Need a specific interest (diplomatic, military etc… ) to justify executive privilege, which is not the case here.
Why should there be freedoms or restrictions for inherent presidential authority? Be able to make arguments for either side
- In times of national emergency, maybe more power needed?
- But not too much power, otherwise you would see oversteps like this more often?
Non-Delegation Doctrine
Congress may not delegate its legislative power to administrative agencies or to POTUS
Sick Chickens and Hot Oil Cases (1935)
In both cases, Congress prescribed unfettered authority to POTUS, which violated the NDD.
For a valid delegation of legislative authority, there must be clear, specific directions/guidance that adequately describe the permissible scope of the law.
Why was the Legislative Veto created?
The legislative veto is a congressional creation in response to the growth/rise of agencies, to check power. In statutes delegating power, Congress would often also reserve unicameral, bicameral, or committee legislative veto power.
Does a congressional act allowing for the unicameral veto of executive agency action violate separation of powers? If so, why? (Chadha)
Legislation providing Congress with a one-house veto over an action of the executive branch is unconstitutional/violates SOP because the act is legislative in nature and, thus, subject to the constitutional requirements of presentment and bicameralism, which it does not meet.
This ruling invalidated the Legislative Veto.
Gundy v. US (2019)
Authorizing the attorney general to enforce the national Sex Offender Registration and Notification Act against pre-act offenders does not violate NDD, because the intelligible-principle standard provides proper guidance
