FEDERAL EXECUTIVE POWER (ARTICLE II) Flashcards
When may the President act without express constitutional or Statutory authorization?
Under certain circumstances under inherent executive powers
What is the rule from Youngstown v. Sawyer (domestic affairs)
The President of the US may not engage in lawmaking activity absent an express authorization from Congress/ Constitution
What are the 3 situations for analyzing when the President can act without express authorization in Justice Jacksons concurrence in Youngstown?
- Apex of Presidential power: President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum
- 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
- 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
What is Executive Privilege?
refers to the ability of the President to keep secret conversations with or from advisors
What is the rule from US v. Nixon? (Criminal Case)
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
What is the rule from Nixon v. Fitzgerald? Civil Acts while in office
The President has absolute immunity from suits for damages based on actions taken in his official capacity
What is the rule from Clinton v. Jones: Civil Acts while not in office
Presidential immunity does not protect sitting President from civil litigations involving actions committed PRIOR to taking office
What is the rule from Trump v. Vance? Criminal Actions
President is not immune to State Criminal proceedings
What is the Non-Delegation Doctrine?
Congress cannot delegate its legislative power to administrative agencies or the executive branch without providing criteria to guide the agencies exercise of discretion
Congress can delegate some discretion to executive agencies to fill in the details but must provide what?
An Intelligible Principal: means that Congress must provide clear guidelines, standards, or goals for the executive branch to agency when delegating authority
What is the rule from ALA Schechter Poultry?
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.
What is the rule from Panama Refining? (Interstate trans of oil)
If Congress delegates too much discretion without guidance, it violates the non-delegation doctrine
What is the rule from Gundy v. US? (national sex offender list)
A delegation is permissible if Congress has made clear to the degree the “general policy he must pursue and the boundaries of his authority”
What is the Major Question Doctrine?
Any administrative agency may act on a major question of economic or political significance only if there is clear authorization from Congress
What is the rule from Biden v. Nebraska?
Congress, not an executive agency, has the power to make significant policy decisions involving large scale financial impacts
What is the Legislative Veto?
Delegation of power by Congress that allows legislative authority body to veto an action taken by the executive branch
What is the rule from Chadha?
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
What is the appointment power?
The President’s authority to select members of agencies, subject to confirmation by the Senate, often directs and conducts the agencies
What are Principal and Inferior Officers?
- Principal officers: selected by the President with the advice and consent of the Senate
- Inferior Officers: Congress may allow to be appointed by the President alone, by the heads of the departments or by the Judiciary
What are the factors to consider when differentiating between Principal and Inferior Officers?
- Nature and Extent of Duties
- How much independence do they have?
- Is the position tenure: temporary or intermittent
What is the rule from Morrison v. Olson? (Officers)
Appointment of inferior officers by entities other than the President, such as courts is constitutional
What is the Inferior Officer Test?
- Subject to removal by a higher branch official
- Empowered by the Act to perform only certain, limited duties
- Office is limited in jurisdiction
- Office is limited in tenure
What is the Recess Appointment Clause?
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
What is the rule from NLRB v. Noel? (Recess)
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
