FEDERAL EXECUTIVE POWER (ARTICLE II)

Question 1

When may the President act without express constitutional or Statutory authorization?

Answer 1

Under certain circumstances under inherent executive powers

Question 2

What is the rule from Youngstown v. Sawyer (domestic affairs)

Answer 2

The President of the US may not engage in lawmaking activity absent an express authorization from Congress/ Constitution

Question 3

What are the 3 situations for analyzing when the President can act without express authorization in Justice Jacksons concurrence in Youngstown?

Answer 3

1. Apex of Presidential power: President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum
2. Gray Area (Twilight Zone) of Power: When the President acts in absence of either a Congressional grant or denial of activity, he can only rely upon his own independent powers. The constitutionality of his actions depends on the circumstances
3. Lowest Ebb of Power: When the President’s actions are in conflict with the express/implied will of Congress and his actions are likely deemed to be unconstitutional unless they fall within the President’s exclusive powers under Constitution

Question 4

What is Executive Privilege?

Answer 4

refers to the ability of the President to keep secret conversations with or from advisors

Question 5

What is the rule from US v. Nixon? (Criminal Case)

Answer 5

A presidential claim of privilege asserting only a generalized interest in confidentiality is not sufficient to overcome the judicial interest in producing all relevant evidence in a criminal case

Question 6

What is the rule from Nixon v. Fitzgerald? Civil Acts while in office

Answer 6

The President has absolute immunity from suits for damages based on actions taken in his official capacity

Question 7

What is the rule from Clinton v. Jones: Civil Acts while not in office

Answer 7

Presidential immunity does not protect sitting President from civil litigations involving actions committed PRIOR to taking office

Question 8

What is the rule from Trump v. Vance? Criminal Actions

Answer 8

President is not immune to State Criminal proceedings

Question 9

What is the Non-Delegation Doctrine?

Answer 9

Congress cannot delegate its legislative power to administrative agencies or the executive branch without providing criteria to guide the agencies exercise of discretion

Question 10

Congress can delegate some discretion to executive agencies to fill in the details but must provide what?

Answer 10

An Intelligible Principal: means that Congress must provide clear guidelines, standards, or goals for the executive branch to agency when delegating authority

Question 11

What is the rule from ALA Schechter Poultry?

Answer 11

Congress’s ability to delegate legislative power is limited without clear guidelines and its ability to regulate economic activities under the Commerce Clause when those activities do not directly affect interstate Commerce.

Question 12

What is the rule from Panama Refining? (Interstate trans of oil)

Answer 12

If Congress delegates too much discretion without guidance, it violates the non-delegation doctrine

Question 13

What is the rule from Gundy v. US? (national sex offender list)

Answer 13

A delegation is permissible if Congress has made clear to the degree the “general policy he must pursue and the boundaries of his authority”

Question 14

What is the Major Question Doctrine?

Answer 14

Any administrative agency may act on a major question of economic or political significance only if there is clear authorization from Congress

Question 15

What is the rule from Biden v. Nebraska?

Answer 15

Congress, not an executive agency, has the power to make significant policy decisions involving large scale financial impacts

Question 16

What is the Legislative Veto?

Answer 16

Delegation of power by Congress that allows legislative authority body to veto an action taken by the executive branch

Question 17

What is the rule from Chadha?

Answer 17

Legislative vetoes are unconstitutional because they violate the Constitution’s Bicameralism and Presentment

Bicameralism = law must pass BOTH houses of Congress

Presentment = Presented to the President for approval or veto

Question 18

What is the appointment power?

Answer 18

The President’s authority to select members of agencies, subject to confirmation by the Senate, often directs and conducts the agencies

Question 19

What are Principal and Inferior Officers?

Answer 19

1. Principal officers: selected by the President with the advice and consent of the Senate
2. Inferior Officers: Congress may allow to be appointed by the President alone, by the heads of the departments or by the Judiciary

Question 20

What are the factors to consider when differentiating between Principal and Inferior Officers?

Answer 20

1. Nature and Extent of Duties
2. How much independence do they have?
3. Is the position tenure: temporary or intermittent

Question 21

What is the rule from Morrison v. Olson? (Officers)

Answer 21

Appointment of inferior officers by entities other than the President, such as courts is constitutional

Question 22

What is the Inferior Officer Test?

Answer 22

1. Subject to removal by a higher branch official
2. Empowered by the Act to perform only certain, limited duties
3. Office is limited in jurisdiction
4. Office is limited in tenure

Question 23

What is the Recess Appointment Clause?

Answer 23

The President shall have the power to full up vacancies that may happen during the recess of the Senate

President may appoint a principal officer without the consent of the Senate IF the Senate is on recess

Question 24

What is the rule from NLRB v. Noel? (Recess)

Answer 24

President’s recess appointments power is limited to actual recesses of the Senate, meaning appointments made during short breaks or when Senate is in session are unconstitutional

Question 25

When can the President remove an executive branch official?

Answer 25

Anytime unless removal is limited by the Federal Statute

Question 26

Congress, by Statute, may limit executive’s removal power if: (2)

Answer 26

1. It is an office where independence from the President is desirable AND
2. If the law does not prohibit removal but rather limits removal in instances where good cause is shown

Question 27

When can the President remove for no cause/ cause?

Answer 27

Even if Congress doesn’t provide for cause of removal, we can use rational to state that in general there needs to be a cause

In order for commission to operate without political pressure then removal process cannot be arbitrary, because it interferes with fair adjudication of claims

Question 28

Can Congress Remove on its own?

Answer 28

NO: Congress can only direct President for grounds of removal, Cannot remove themselves

Question 29

What is the rule from Myers? (Principal Officer)

Answer 29

The President has the authority to remove executive branch officials without requiting the consent from Congress

Question 30

What is the rule from Humphrey’s Executory? (Inferior Officer)

Answer 30

Congress can restrict the President’s removal power over officials of independent regulatory agencies by required that they only be removed for cause.

Question 31

What is the rule from Wiener?

Answer 31

President cannot remove an official from an independent agency without cause if the relevant statute provides for such protections.

Question 32

What is the rule from Bowsher v. Synar?

Answer 32

Congress cannot retain the authority to remove executive branch officials in a manner that interferes with the President’s constitutional powers

It is the Presidents job to make sure the laws are being executed so he has the power to remove

Question 33

What is the rule from Free Enterprise Fund v. PCAOB?

Answer 33

A statute that creates two layers of for cause removal of certain executive branch officials violates separation of powers by unduly limiting the President’s ability to execute the laws

Question 34

What is the rule from Seila law v. CFPB?

Answer 34

1. President must have ultimate control executive officials to ensure accountability in the executive branch.
2. Principal officers must be removable at will by the President; Restricting the President’s ability to remove its members is unconstitutional