Federal Executive Power Flashcards
Article 2 “executive power shall be vested in a President”
Power to make treaties, to make certain appointments
- It does not limit the president to the powers “herein granted” it is argued that the president has authority not specifically delineated in the Constitution.
Presidential power in zone of twilight
Congressional grant or denial or power absent.
-> If congress has not spoken, invitation for independent presidential responsibility.
Presidential power at its Max
acts pursuant to express or implicit authorization from Congress.
-Heavy burden to invalidate, presumption in favor of presidential action.
Presidential power at its lowest
measures incompatible with the express or implied will of congress.
Executive Branch appointment exception..
Congress may vest in law by of inferior officers as they think proper in…
- the president alone
- to the courts of law
-in the heads of departments
Article 2
President shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States.
-> congress may not reserve to itself the power to appoint executive branch officials.
Inferior officers
-limited duties
-limited in scope and jurisdiction- including a lack of policy making responsibilities
-Subordinate to someone who can remove them (district court clerks, independent counsel, board members)
-limited tenure
Buckey v. Valeo
Speaker of the House and the President Pro Tempore are not able to have appointment power.
-Not one of the positions mentioned in Constitution.
Recess Appointments
According to Article 2, President has the power to fill up all vacancies that happen during the recess of the Senate.
-> Vacancy does NOT need to arise during the recess.
-> Session is completely determined by the senate, who does whatever they can do to prevent the president from making a recess appointment.
Removal Power
No constitutional provision addresses the removal power.
-Congress cannot prohibit removal of executive brand officials altogether, but it may limit the removal as long as the limitations do not impede the president’s ability to discharge his constitutional duties.
-> President has the authority to remove members of his policy making inner circle executive officials for any reason(bad reason included)
Executive Privilege
The ability of the president to keep secret conversations with or memoranda to or from advisors. Not mentioned in the constitution, but presidents have claimed it throughout history. (Essential to the president’s role- needs to ensure that aids and advisors will offer him candid advice)
US v. Nixon
Role of the court to decide whether the president has executive privilege and if so, its scope.
-> The court recognized the existence of executive privilege.
->Executive privilege is not absolute, but rather must yield when there are important countervailing interests.
Executive Immunities
Constitution is silent on executive immunities.
->In addition to the president only prosecutors are accorded absolute immunity.
->Other executive officials only have qualified immunities. (IF they acted in good faith, they cannot be sued.)
-> Test: did the official violate a clearly established right that a reasonable would have known?
Criminal Prosecutions
It is unsettled whether a president may be criminally prosecuted while in office or whether the sole remedy is impeachment or removal.
Civil Cases
A president is absolutely immune from civil suits arising out of his official actions.
-> A president may not be sued for injunctions or money damages for actions taken while in office.
-> A president, while in office, may be sued for conduct that occurred before taking office.
