Federal Executive Powers

Question 0

Art II, Sec 2 Express Powers

Answer 0

Treaties; Commander in Chief; Pardon Power; Appoint Ambassadors, Judges, Foreign Ministers; Vacancies; Veto Power; State of the Union; Foreign Relations Power

Question 1

Federal Executive Powers

Answer 1

Art II, Sec 1 provides that “the executive power shall be vested in a President of the US of America”. This provision confres broad authority to the Pres to execute laws of the US. Although there are few powers expressly granted to the president under Art II, much of the Pres’s domestic and foreign powers are implied. The Supreme Court has emphasized strongly that the Pres has no power to make the laws, but has the power to execute them.

Question 2

Executive Implied Powers

Answer 2

Legally, there are no implied powers

Question 3

Executive Inherent Powers

Answer 3

Everything outside of the statutes/ constitution to execute/enforce
-Not from statutes or Constitution (sort of like a CEO), can’t outline everything that the executive needs to do.

Question 4

Youngstown v. Sawyer (1952)

Answer 4

• Facts: Mills closed during the war. President issued an executive order to keep mills open. His reasoning: it affects national defense and as commander in chief of military, he has power to stop closures.
• Held: SC invalidated Pres’s order directing seizure of steel mills to prevent a threatened strike. Court says Pres cannot usurp congress’s law-making authority.

Question 5

Youngstown Analysis of Pres non enumerated powers by Jackson

Answer 5

1) Power at Maximum:
==When president acts in accord with express/implied authorization of Congress
==If Congress gives express/implied authorization of Congress, President will have power all the time except fo
2) “Zone of Twighlight” - Congress is Silent (no approval/no denial)
==Congress is silent (no approval/denial). when the president acts in absence of either a congressional grant/denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and congress may have concurrent authority or in which its distribution is uncertain. Imperative events and grey areas - everything has to be taken into account on case by case basis.
3) Power at minimum: Contrary to express or implied will of Congress
==When the presidential actions are contrary to expressed/implied will of Congress. He can only rely upon his constitutional powers minus the constitutional powers of congress. Actions would most likely be struck down. (Emergency does not create exec power, even though the leg is usually slower to act)

Question 6

Executive Privilege

Answer 6

• The president has an absolute privilege to refuse disclosure of info relating to military, diplomatic or senstive national security events. However, other confidential communications between the president and his advisors are only presumptively privileged. (US v Nixon 1974)
• Absolute evidentiary privilege not to divulge info
• Executive privilege exists but must yield to important interests – Need vs. General Interest to divulge information. Nixon’s argument was not within things related to national security.

Question 7

Political Question Doctrine

Answer 7

Certain questions are not justiciable becaus they are politcial and revolve around executive power.

• May implicate seperation of powers - line between congressional and presidential power
• Resolution may be committed to another branch - usually something decided by who gets elected.

Question 8

Intra Branch Dispute

Answer 8

Non Justiciable.
“Unitary executive” theory means exec branch is unitary, and all members are part of one unit. Nixon’s argument when asked about things and he said it would be self incriminating to answer.

Question 9

How to Analyze Executive Powers

Answer 9

• CQ1: is there express statutory or congressional grant of power?
• CQ1b: Jackson’s (inherent) executive power analysis
• CQ2: Is it otherwise a violation of the Constitution?

Question 10

Ability of Congress to Increase Executive Power

Answer 10

-Clinton v. City of NY
== Line item veto would give the president the power to cancel portions of new federal legislation, but it was held unconstitutional. Congress cannot give away their power, because this is inconsistent with Art 1, sec7: seperation of powers.

Question 11

Presidential Veto Power

Answer 11

Art I, Sec 7
Allows president to veto a bill, Once Congress has approved legislation, the President has 10 days in which to act upon it. Unless he vetoes it within the 10 day period, the proposed legislation will become law.
A president can pocket veto a bill not passed at the end of the congressional term by not signing it.
Silence by constitution is construed as prohibition as to whether the President can unilaterally repeal or amend parts of bills.

Question 12

Non Delegation Doctrine

Answer 12

Principle that Congress may not delegate its legislative power to admin agencies. The doctrine forces Congress to make policy choices rather that leaving this to unelected admin officials. (violates separation of powers)

Form v. Purpose
==Purpose: to effectively run a natl govt, we can only do that by abandoning this doctrine.
==Form: only in the context of ArtI, Sec 7

Question 13

ALA Schechter Poultry v. US (1935)

Answer 13

Congress passed an act which delegated powers to the President who would regulate certain industries by creating codes of conduct. Didn’t not give him guidelines.
-held that Congress couldn’t delegate.

Question 14

Whitman v. American Trucking (2001):

Answer 14

• Death of the Non Delegation doctrine. SC doesn’t enforce it now. As long as Congress gives mere pretense of guidelines, then it is okay.
• Court held that providing agencies with some level of discretion in setting regulations is not unconstitutional.

Question 15

Legislative Veto

Answer 15

Questions how the power of administrative agencies will be checked and controlled if non-delegation doctrine is dead.
Congress could enact laws overturning an agency’s rule but legislative action takes time and they feel its more efficient to delegate control
Created as a check on administrative agencies by having statutes enacted including provisions authorizing either house to overturn an agency’s actions.

INS v. Chadha (1983)
SCOTUS ruled legislative veto is unconstitutional because of problems with bicameralsim (both houses) and presentment (formally given to president). this is the process of writing laws set by the constitution

Question 16

How Congress may check Administrative Agency Powers

Answer 16

• Write a law that overturns an agency’s code, following the proscribed procedures for bicameralism and presentment. President may veto those statutes, meaning Congress would have to gather 2/3 vote.
• Control of budget of administrative agencies.

Question 17

Appointment Power

Answer 17

-Article II, Sec 2 gives the President the power, “with the advice and consent of the Senate” to nominate and appoint all “ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the US, whose appointments are not herein otherwise provided fo”

Question 18

Principal Officer

Answer 18

Highest level (broadest authority and participates in formulating policy for the executive branch.
-Nominated by President (ex. Ambassadors and cabinet members)
Process: recommended by Pres ->senate committee->full senate-> advice and consent (50%+) majority

Question 19

Inferior Officer

Answer 19

-If congress says nothing, President can appoint (default). But Congress has the power to choose the person who can appoint.
-Congress can delegate appointment to either:
=The President
=The Judiciary, or
=Heads of departments
But congress cannot assign the task to legislative members.

Question 20

Employees

Answer 20

Layer of people below the inferior officers

No substantial policy related responsibilities (ex: janitor at White House)

Question 21

Appointment Power: Morrison v. Olsen (1988)

Answer 21

• Upheld statute under which the federal judge appoint “independent counsel” to investigate and prosecute government officials suspected of wrongdoing, because independent counsel is an “inferior” officer subordinate to the US Attorney General.
• Court found them to be inferior officer b/c of the limitations and scope of the duties in which were under the Attorney General (a principal officer) and it was a temp position so the court held that it did not violate the appointment power of the constitution.

Question 22

Removal Power

Answer 22

Although the Constitution is silent with respect to removal power, it is generally agreed that the President may remove any executive appointee (e.g. an ambassador or cabinet member) without cause.
-Standard: Pres may remove executive officials unless removal is limited by statute.

Question 23

Removal Power, if Independence is required

Answer 23

-Congressional limitation on power of removal: The president must have cause, however, to remove executive officers having fixed terms and officers performing judicial or quasi-judicial functions.
-Good Cause required if:
==Independent from executive and
==Inferior officers (not principle officers)
-Congress has no power to summarily remove an executive officer. They cannot pass a statute which prohibits the president from completely removing someone.
-Federal judges cannot be removed by either Congress or the President during “good behavior”; formal impeachment proceedings would be required for removal.

Question 24

Impeachment

Answer 24

House shall have the sole power to impeach. Senate has the sole power to try all impeachment proceedings.
Can be impeached for high crimes and misdemeanors.

Question 25

Separation of Powers and Foreign Policy

Answer 25

• Art I, Sec 8 grants Congress the power to regulate commerce with foreign nations, declare war, regulate commerce, ratify treaties, raise and support armies, etc.
• Art II gives the President the power to make treaties with the consent of the Senate (2/3 vote)
• The SC has declared that many issues concerning foreign policy are non-justiciable political questions

Question 26

US v. Curtiss-Wright

Answer 26

• The President has executive and plenary powers as the “sole organ of the federal government in international relations”.
  ==Efficiency and knowledge: Foreign relation powers are different because the President has a particular point of view (might know things that no one else does, aka intelligence

Issues: non-delegation docrine to other countries
=Limits on federal power over domestic issues
==Primary power is with congress because they were given over States in the constitution
=Limits related to foreign nations
==Commander-in-chief power is executive knowledge
==Foreign Power comes from crown–>executive; so historically, states never had the power–>At the time of independence, this power went to the nation.

Question 27

Treaties and executive agreements

Answer 27

Art II, Sec 2, the president has the power to make/negotiate treaties with foreign nations “ by and with the advice and consent of the Senate…provided 2/3 of the Senators present concur”
In accordance with the supremacy clause-treaties take precedence over any conflicting state laws regardless of whether it preceeds or follows the enactment of the state laws.

Question 28

Executive Agreements

Answer 28

• Courts nave never declared an executive agreement
• If president doesn’t think that Senate will ratify his treaty, he will instead cross it off and write executive agreement over it.
• Although this is wholly unsupported by law, we uphold it because of our tradition and history of doing so and Congress’s acquiescence of authority.
• Executive agreements are usually topics in which Congress has loosely agreed or in which mostly relates to executive powers.

Question 29

Treaties, Two different powers of law

Answer 29

1) Self executing agreements:
- When it takes effect without the necessity of any action by Congress
- Supreme Law of the land.
2) Not self-exucuting treaties (executory treaties Must become law):
- When it requires Congress to pass federal legislation to implement is provisions. Have to wait for Congress to make it happen.
- Not supreme law of the land and thus do not supercede existing federal and state statutes without further action by Congress.

Question 30

Dame & Moore v. REgan, Secretary of the Treasury (1981)

Answer 30

• Iran-US Claims Tribunal
  -Constitutional
  ==Congress has cone along with executive treaties in place of treaties before and it is still acceptable now.
  ==Efficient
  Art II makes the President Commander in CHief
  The war power confers upon Congress very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime and in wartime.. Thus, the Supreme Court has upheld military draft and selective service systems; the power of Congress to intiate wage, price, and rent control of the civilian during waritme, and the xlcusion of civilian from certain restricted areas during wartime.

Question 31

Wartimes Powers REsolution of 1973

Answer 31

=Requirement for introduction of armed forces:==declaration of war
==statutory authorization
==National emergency created by an attack on the US
=Reporting Requirements
==Initial report within 48 hours/ other info as requested/ semi-annual reports
=Congressional actions
==Non-approval (no DOW or authorization: 60 days (+30)
=Concurrent resolution for removal.
=War Powers Act is not a valid piece of legislation because it limits the executive power, but it is useful to see what Congress wanted the executive to do.

Question 32

Presidential Power and the War on Terror

Answer 32

=Executive Branch has powers for national security and its heightened during times of war. The president has authorization to use all necessary and appropriate force against other nations within the legislative empowerment for declaration of War.

Question 33

Hamdi v Rumsfeld (2004)

Answer 33

Facts: Born in U but lived in afghanistan and did stuff there. Recieved b/c of cash reward. Held in Gitmo. Labeled enemy combatant: indefinite time and no proceedings. Evidence against him was 3rd party hearsay (affidavit) that he was a terrorist
- Detention is lawful because the Authorization for the Use of Military Force–> Fact of war that enemy combatants kept. Inherent to keep them til war is over.
= Held: he had to be given to opportunity to dispute the process
== Required minimal procedural standards for US combative citizen: (1) Must receive notice of the factual basis (2) An opportunity to rebut (3) That there is a neutral decision maker magistrate. (additional protections do not have to be given)

Question 34

Boumediene v. Bush (2008)

Answer 34

=Supreme Court held that the statute strips federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at guantanamo.
=Also held that detaines are not barred from seeking habeas or invoking the suspension clause simply b/c they had been designed as enemy combatant or held at Gitmo.

Question 36

Definition of Enemy Combatant

Answer 36

=Justice O’Connor - individual allegeldly part of oor supporting forces hostile to the US or coalition of partners in Afghanistant and who engaged in an armed conflict against the US there.

Question 37

Suprme Court identifies two questions in Hamdi

Answer 37

CQ1: Is the detention lawful?
=Yes, permitted. Executory state authority to do this.
=Authorization for Use of Military Force) - gives statutory authority to President
==Souter (and ginsberg) says its not specific enough because he is a US citizen. ( contrast to Japenese Concentration)
==Scalia (and Stevens)- treason only looks to citizens which should be followed under all circumstances
CQ2: If it is lawful, what appropriate procedural protections are thre since he’s a citizen?
=Matthews Test
==Private interests that will be affected by the actions against
==Governement’s asserted interest
==What is required?
===Notice if factual basis
===Fair opportunity to rebut
===Neutral tribunal