Presidential Powers and Checks on the President - Oct. 19, 24, and 26

Question 1

What are the constitutional sources of the president’s power? (Q)

Answer 1

Article II of the Constitution sets forth the framework for the executive branch of the federal government and describes the bases of the president’s power. Article II, in the Vesting Clause, vests executive power in the president. Executive power is the power to enforce the laws. Some of the president’s powers are traced impliedly to the Vesting Clause. Others, such as the president’s authority as Commander in Chief, are derived expressly from more specific provisions of Article II.

Question 2

Is presidential power at its broadest when Congress expressly or impliedly authorizes an action? (Q)

Answer 2

Yes. Presidential power is broadest when Congress expressly or impliedly authorizes the action. If Congress is silent and the president acts without a congressional grant or denial of authority, the president must rely on his own independent powers. In this so-called zone of twilight, both the president and Congress may have concurrent authority, and the distribution of power is uncertain. Presidential power is lowest when the president acts contrary to Congress’s express or implied will.

Question 3

What authority does the Take Care Clause vest in the president? (Q)

Answer 3

The Take Care Clause requires the president to “take care that the laws be faithfully executed.” Under this clause, the president is responsible for enforcing federal law. To do so, the president may issue executive orders that have the force of law.

Question 4

The president of the United States wanted to initiate a criminal prosecution against an individual who appeared to have violated federal drug laws.

Can the president direct the attorney general of the United States to initiate a criminal prosecution? (Q)

Answer 4

Yes. The president can direct the attorney general of the United States to initiate a criminal prosecution. The Take Care Clause of the U.S. Constitution gives the president of the United States the power and obligation to ensure that federal laws are enforced. The president’s authority to direct criminal investigations and criminal prosecutions lies at the core of the power to make sure that the laws are being enforced.

Here, the president directed the attorney general to prosecute an individual who appeared to violate federal drug laws. The Take Care Clause gives the president the power to enforce federal law by directing criminal prosecutions or criminal investigations. Thus, the president can direct the attorney general to initiate a criminal prosecution.

Question 5

May the president create law? (Q)

Answer 5

No. The president may not create law. The Take Care Clause vests the president with the power to execute federal law, but the president has no authority to create federal law.

Question 6

Malware threatened to cripple the operation of cell-phone networks. To avoid damage to the national economy, the president of the United States issued an executive order that nationalized the operation of cell-phone networks. No federal statute authorized the president to take such action. The owners of the cell-phone networks sued to block the implementation of the executive order, arguing that the president did not have the authority to issue it.

Did the president have the authority to issue this executive order? (Q)

Answer 6

No. The president did not have the authority to issue this executive order. The Take Care Clause of the U.S. Constitution requires the president to faithfully execute the laws, which includes issuing executive orders. The president’s power to issue executive orders is limited to executing laws and does not extend to creating them. Lawmaking power is vested in the legislative branch.

Here, while the president has the constitutional authority to execute or enforce federal statutes under the Take Care Clause, this executive order did not enforce a federal statute. There was no federal statute authorizing the nationalization of the nation’s cell-phone networks. This order did not execute any other law. Rather, this order created a new law, which is a legislative power. Thus, the president did not have the authority to issue this executive order.

Question 7

Does the president have the power to decline to prosecute offenses against the United States? (Q)

Answer 7

Yes. The president and other executive branch officials, like United States attorneys, have the power to decline to prosecute offenses against the United States. This is true even if a grand jury votes to indict a particular defendant.

Federal courts have reasoned that the ultimate authority for executing the laws falls to the executive branch, and a judicial organ such as a grand jury cannot limit the authority vested by the Constitution in the president to faithfully execute the laws of the United States.

Question 8

What is an executive order? (Q)

Answer 8

Executive orders are signed, written, and published directives that have the force of law. In exercising his powers under the Take Care Clause, the president may issue executive orders to manage aspects of the federal government. The president may issue executive orders only for the purpose of carrying out authority granted by the Constitution or Congress, not to create law.

Question 9

By what authority may the president issue an executive order? (Q)

Answer 9

An executive order having the force of law must be issued pursuant to:

a constitutional grant of power or

a federal statute or other congressional action that expressly or implicitly authorizes the president to take the action specified in the executive order.

Executive orders lacking the necessary support are unconstitutional because they do not execute federal law, which is all that the Take Care Clause empowers the president to do.

Question 10

What powers does the Commander-in-Chief clause grant the president? (Q)

Answer 10

The Commander-in-Chief Clause names the president as the commander in chief of:

the Army;

the Navy; and,

the state militias, when they are serving the United States.

Question 11

Do the president’s commander-in-chief powers include the power to create military tribunals that adjudicate charges against foreign nationals involved in military operations? (Q)

Answer 11

Yes. The president’s commander-in-chief powers include the power to create military tribunals that adjudicate charges against foreign nationals involved in military operations. If the president creates a military tribunal, the tribunal must provide defendants with fundamentally fair procedures that comply with baseline notions of due process of law.

Question 12

Does the president have the power to declare war? (Q)

Answer 12

No. The president does not have the power to declare war. Congress has the sole authority to declare war. However, the president may command the armed forces to defend the United States and initiate or engage in hostilities with foreign nations.

Question 13

Do the president’s commander-in-chief powers include the power to deploy U.S. military forces to engage in emergency tactical operations without first seeking approval from Congress? (Q)

Answer 13

Yes. As commander in chief, the president can deploy the armed forces on a tactical basis to meet military, national-security, and foreign-affairs emergencies absent congressional approval. The federal courts will not review the legality, wisdom, or propriety of presidential deployments of armed forces abroad to defend national interests.

The president’s power to make tactical decisions regarding armed forces deployments does not include the power to declare war. Only Congress has the power to declare war.

Question 14

Congress was concerned about the increasing cost of military operations abroad. To address this budgetary concern, Congress enacted a law that required the president of the United States to seek and obtain the affirmative consent of both houses of Congress before deploying more than 100 members of the U.S. armed forces abroad for any reason.

Is this limitation on the president’s commander-in-chief authority to deploy armed forces constitutional? (Q)

Answer 14

No. The limitation is an unconstitutional limitation on the president’s commander-in-chief powers. As commander in chief, the president has the power to make all tactical decisions regarding the use of the armed forces. This includes the power to deploy as many members of the armed forces as needed to secure military, national security, and foreign affairs interests. Congress cannot pass a law that limits the president’s constitutional authority as commander in chief.

Here, the law restricts the number of deployed troops to 100 and requires congressional approval. This law restricts the president’s authority as commander in chief to deploy troops as necessary to secure national interests. Thus, the law is unconstitutional.

Question 15

What is a writ of habeas corpus? (Q)

Answer 15

A writ of habeas corpus is a judicial order that a detained party be brought before a judge for one of several purposes, including to inquire about and provide legal justification for his detention, testify, or face criminal prosecution. A writ of habeus corpus allows a petitioner or otherwise detained individual to seek release from unlawful detainment.

Question 16

Under what circumstances may the president suspend the writ of habeas corpus in his role as commander in chief? (Q)

Answer 16

The president, acting with congressional authorization, may suspend the writ of habeas corpus only under the circumstances defined in the Suspension Clause: when cases of rebellion or public safety require it. The Suspension Clause applies to citizen and non-citizen detainees held in the United States and in Guantanamo Bay.

Absent a valid suspension, neither the president nor Congress may deprive individuals protected by the Suspension Clause of the right to petition for a writ of habeas corpus without providing an adequate substitute.

Question 17

In his role as commander in chief, may the president detain citizens indefinitely without due process? (Q)

Answer 17

No. Even if the president has statutory authorization for the detention, the president may not detain U.S. citizens indefinitely without providing them due process. A citizen’s due-process rights include the right to notice of the factual basis for his or her detention and a fair opportunity to rebut that factual basis before a neutral arbiter.

Question 18

What powers does the president have with respect to foreign affairs? (Q)

Answer 18

The president is the head of government for purposes of dealings with foreign governments. As the sole organ, the president generally has significant authority and broad discretion over issues of foreign policy and relations with foreign nations. Pursuant to Article II of the Constitution, the president is the representative of the United States in foreign affairs and has the power to:

appoint ambassadors and foreign ministers, with the advice and consent of the Senate, and
receive ambassadors and other foreign diplomats.

Implied in this power is the right to refuse to receive foreign ambassadors. This means that the president effectively has the authority to determine whether or not to recognize a foreign government, which is critically important under international law.

Question 19

The president of the United States decided to recognize a new foreign government. However, both houses of Congress expressly objected to recognizing the new government.

Does the president have the constitutional authority to recognize this new foreign government? (Q)

Answer 19

Yes. The president has the constitutional authority to recognize a new foreign government even if both houses of Congress expressly object to the recognition. Article II of the U.S. Constitution gives the president the authority to conduct foreign relations. Under this authority, the recognition of a foreign government is a power that belongs to the president alone.

Here, it does not matter that both houses of Congress objected to the recognition of the new government. Under Article II, the president has the power to conduct foreign relations. The president’s recognition of the new foreign government is all that is necessary for the recognition to be valid and binding. Thus, the president has the constitutional authority to recognize a new foreign government despite Congress’s objection.

Question 20

What is a treaty? (Q)

Answer 20

A treaty is an international agreement concluded between two or more countries in written form and governed by international law. It may be embodied in a single instrument or in two or more related instruments.

Question 21

What is a self-executing treaty? (Q)

Answer 21

A self-executing treaty is immediately enforceable upon ratification; it does not require legislation to be implemented. Self-executing treaties automatically become binding federal law.

Question 22

What is a non-self-executing treaty? (Q)

Answer 22

A non-self-executing treaty is enforceable only after additional legislation or government action.

When a United States treaty does not contain self-executing language but merely states a pledge to enact further legislation, the treaty does not take effect or become the supreme law of the land unless an additional legislative act is performed by the United States President or Congress.

Question 23

What powers with respect to treaties does the Constitution vest in the president? (Q)

Answer 23

The Treaty Clause provides that the president may enter into treaties with foreign nations. However, any treaty the president enters must be ratified by a two-thirds Senate vote.

Question 24

Do the president’s constitutional treaty powers include the power to use a self-executing treaty to amend or annul an existing federal statute? (Q)

Answer 24

Yes. The president’s constitutional treaty powers include the power to use a self-executing treaty to amend or annul an existing federal statute. Once the Senate ratifies a self-executing treaty, that treaty becomes the law of the land under the Supremacy Clause (Article VI, Clause 2) of the Constitution, like any other federal law. If a self-executing treaty contains provisions that conflict with an existing federal statute, then the later-enacted treaty provisions govern.

Question 25

As part of a deal with a country run by a dictator, the president of the United States proposed and the Senate ratified a non-self-executing treaty calling for both governments to prohibit and punish seditious libel (i.e., criticism of the government). Pursuant to the treaty, Congress enacted the Sedition Act, which imposed criminal penalties for speech that brought the federal government or its officers into ill-repute or contempt. The federal government indicted a defendant under the Sedition Act for publicly insulting the president of the United States. The defendant moved to dismiss the indictment, arguing that the statute violated the First Amendment to the U.S. Constitution. The federal government claimed that because Congress enacted the law pursuant to a treaty, the law did not have to comply with the First Amendment.

Is the federal government correct? (Q)

Answer 25

No. The federal government is incorrect. Even if a law is enacted pursuant to a treaty, the law must comply with the First Amendment. A non-self-executing treaty cannot directly prohibit anything on its own. Congress must pass a law to execute the treaty’s directives. However, like any other federal law, a law passed pursuant to a non-self-executing treaty must comply with the provisions of the U.S. Constitution. Any such law that does not comply with the Constitution is invalid.

Here, Congress passed the Sedition Act pursuant to a treaty. The law must comply with the First Amendment and other constitutional protections. Because the law violates the First Amendment, it is invalid. Thus, the federal government is incorrect.

Question 26

May the president unilaterally rescind a treaty without congressional approval? (Q)

Answer 26

Yes. The president may unilaterally rescind a treaty without congressional approval. Although the Constitution is clear on the fact that the Senate needs to be involved in the making of a treaty, it is silent as to whether both executive and legislative action are required to rescind a treaty. Thus, under current law, the president may unilaterally rescind a treaty.

Question 27

What is an executive agreement? (Q)

Answer 27

An executive agreement is an international agreement, executed by the president, which does not require the congressional ratification necessary to execute treaties. Executive agreements have the force of law but have less weight and authority than treaties. Like treaties, executive agreements may relate to any subject matter.

Question 28

Does the president have the power to enter into an executive agreement with another nation? (Q)

Answer 28

Yes. The president has authority to enter into executive agreements with other nations. Although not expressly authorized by the Constitution, presidents have historically had the power to unilaterally enter into executive agreements with foreign nations without input from Congress.

Question 29

What are the primary similarities between a treaty and an executive agreement? (Q)

Answer 29

Externally, treaties and executive agreements are basically the same. Both treaties and executive agreements:

are valid options for foreign nations to enter into agreements with the United States,
are binding on the United States,
can be used to accomplish any type of agreement on any subject, and
will supersede inconsistent state laws.

Question 30

What is the primary difference between a treaty and an executive agreement? (Q)

Answer 30

The primary difference between a treaty and executive agreement is that a treaty is on equal footing with federal law but an executive order is not. When a treaty conflicts with a federal statute, the last one enacted will prevail. In contrast, an executive agreement will never prevail over a federal statute.

Question 31

Are treaties and executive agreements that violate the Constitution enforceable? (Q)

Answer 31

No. Treaties and executive agreements that violate the Constitution are unenforceable, even if that means that the United States is in violation of its obligation to the other country or countries that are party to the agreement.

Question 32

Can Congress require the president to seek its approval before exercising his constitutional authority to execute the laws? (Q)

Answer 32

No. Congress cannot require the president to seek its approval before executing his constitutional authority to execute the laws. Congress cannot supervise the president’s execution of delegated authority.

The legislative branch has the authority to make laws. The executive branch has the authority to execute and enforce the laws. Neither members of Congress nor any other legislative official can enforce federal laws.

Question 33

The president sought to use the presidential power to execute federal law by entering into a certain type of contract. However, Congress wanted to require the president to seek the approval of a Senate committee that specialized in that subject area before signing that type of contract.

Can Congress require the president to seek the approval of a specialized congressional committee? (Q)

Answer 33

No. Congress cannot require the president to seek the approval of a specialized congressional committee because Congress cannot supervise the president’s execution of delegated authority. The legislative branch has the authority to make laws. The executive branch has the authority to execute and enforce the laws. Neither members of Congress nor any other legislative official can enforce federal laws.

Here, the president is entering this type of contract under the executive-branch power to execute federal laws. Congress, as the legislative branch, cannot interfere with that authority. Thus, Congress cannot require the president to submit executive actions to a congressional committee for approval.

Question 34

May Congress require the administrative agencies acting under delegated executive power to make reports to Congress on their uses of delegated authority? (Q)

Answer 34

Yes. Congress may require the administrative agencies acting under delegated executive power to make reports to Congress on their uses of delegated authority.

Congress cannot direct or control the executive branch’s exercise of its exclusive power to ensure faithful execution of the laws. However, Congress may require the executive branch to report to Congress on its use of its delegated authority. Congress may also condition the executive branch’s exercise of its own authority on first reporting to Congress and then waiting for a certain period of time before acting.

Question 35

Congress enacted a review statute that required federal administrative agencies, including all cabinet departments, to report major rules to Congress at least 60 days before the effective date of the new regulations. The statute also provided for expedited consideration of a resolution of disapproval for these regulations enacted by both houses and presented to the president.

Does the statute’s reporting requirement violate the separation-of-powers requirements in the U.S. Constitution? (Q)

Answer 35

No. The statute’s reporting requirement does not violate the separation of powers. Congress cannot direct or control the executive branch’s exercise of its exclusive power to ensure faithful execution of the laws. However, Congress can require the executive branch to report to Congress on its use of its delegated authority. Congress can also condition the executive branch’s exercise of its own authority on first reporting to Congress and then waiting for a certain period of time before acting.

Here, the statute does not direct nor control executive regulations. The reporting requirement merely conditions the executive branch’s exercise of its authority on giving Congress an opportunity review the regulations while there is still time to legislate to disapprove them. Thus, the reporting requirement does not violate the separation of powers.

Question 36

May Congress act to limit the president’s actions during wartime? (Q)

Answer 36

Yes. Congress may act to limit the president’s authority during wartime. Because presidential exercise of power in wartime can mean that both the president and Congress have concurrent authority, the federal courts must sometimes determine the constitutional distribution of power.

The War Powers Resolution is another law designed to check the president’s exercise of war powers. The act forbids the president from sending troops into action without congressional approval, unless the United States is attacked.

Question 37

What is impeachment? (Q)

Answer 37

Impeachment is the process by which the House of Representatives initiates removal of officials for treason, bribery, and high crimes and misdemeanors. The Constitution vests the impeachment power in the House. The House debates the grounds for impeachment and then passes a resolution of impeachment. The House may also impeach federal judges for misconduct. The Constitution vests the authority to try impeachments in the Senate. Thus, after the House passes a resolution of impeachment, the Senate will conduct a trial. Generally, the vice president presides, but the chief justice of the U.S. Supreme Court presides if the president is impeached. The Senate may convict with a two-thirds vote.

To date, two presidents have been impeached (Andrew Johnson and William Clinton), but neither was convicted and removed. President Richard Nixon resigned with impeachment proceedings imminent.

Question 38

What are the three grounds that Congress can use to impeach an executive official? (Q)

Answer 38

Generally, Congress can use the impeachment power to remove executive officials for:

treason,
bribery, or
other high crimes and misdemeanors.
Congress may also impeach judicial officials (e.g., federal judges) for misconduct.

Question 39

What is the House of Representatives’s role in the impeachment process? (Q)

Answer 39

Article I vests the House of Representatives with the sole power to impeach. This means that the House of Representatives will debate the grounds for impeachment and pass a resolution of impeachment if there is sufficient evidence of the particular official’s high crimes and misdemeanors. At that point, the question goes to the Senate, which has the power to try impeachments.

Question 40

What is the Senate’s role in the impeachment process? (Q)

Answer 40

The Senate has the sole authority to try impeachments. After the House of Representatives passes a resolution of impeachment, the Senate will conduct a trial. The vice president presides over the impeachment trial, unless the president is being impeached, in which case the chief justice of the U.S. Supreme Court presides. The Senate may render a conviction with a two-thirds vote.

Question 41

For what offenses may federal officials be impeached? (Q)

Answer 41

Officials may be impeached for treason, bribery, and high crimes and misdemeanors. The language of the Constitution deliberately keeps the definition of impeachable offenses open, allowing the process to remain sufficiently flexible to deal with unforeseen circumstances.

Question 42

What penalties may the Senate impose on an impeached official? (Q)

Answer 42

The Constitution limits impeachment penalties to removal from office and disqualification from holding office in the future. An impeached official may still be subject to criminal and civil liability for the conduct that gave rise to impeachment proceedings.

Question 43

May Congress’s impeachment and conviction of a federal official be reviewed in federal court? (Q)

Answer 43

No. Congress’s impeachment and conviction of a federal official is not reviewable by federal courts. Congress’s impeachment power is broad, and a conviction by the Senate following the constitutionally prescribed procedures may not be reviewed in federal court. The U.S. Supreme Court has concluded that lawsuits challenging impeachments present nonjusticiable political questions.

Question 44

Can Congress authorize a legislative officer to execute a federal statute? (Q)

Answer 44

No. Congress cannot authorize a legislative officer (an officer subject to congressional appointment or removal) to execute a federal law. Once Congress enacts a federal statute, only the executive branch has the authority to decide how to execute that law.

Congress can modify parts of a federal statute or the way that the statute can be executed by passing a new law. This means that both houses must pass a new bill. The new bill must be presented to the president of the United States to either sign or veto.

Question 45

Must Congress present legislation to the president for signature before the bill becomes law? (Q)

Answer 45

Yes. Congress must present legislation to the president for signature before it becomes law. Article I’s Presentment Clause provides that Congress must present to the president any bill passed by the House of Representatives and the Senate. The president may then sign the bill into law, veto the bill by returning it to Congress without a signature, or do nothing.

Question 46

What options does the president have when Congress presents him with a bill? (Q)

Answer 46

Upon being presented with a bill, the president may:

sign the bill into law,
veto the bill by returning it to Congress without a signature, or
do nothing.
If the president fails to return a bill within 10 days of presentment, the bill automatically becomes law. However, if the bill cannot be returned because Congress adjourns before 10 days have passed, then the bill may not become law without the president’s signature. Thus, if the president withholds signature on a bill within 10 days of Congress’s adjournment, the bill cannot become law. This is also known as a pocket veto.

Question 47

Congress enacted a bill and promptly adjourned for a month. The president of the United States neither signed nor vetoed the bill. Ten business days passed and the president still did not sign or veto the bill.

Is the bill now a law? (Q)

Answer 47

No. The bill is not a law. The president pocket vetoed the bill. The Presentment Clause of the U.S. Constitution states that Congress must present bills to the president before the bill becomes a law. While Congress is in session, an unsigned bill will automatically become a law if the president does not veto it within 10 days (not counting Sundays) by returning an unsigned copy to Congress. However, if Congress adjourns before the end of the 10-day period, the president cannot return an unsigned bill to Congress to veto it. The bill is automatically vetoed if the president does not sign or veto it within 10 days (not counting Sundays). This is called a pocket veto.

Here, Congress adjourned before the end of the 10-day period. Because the president did nothing within the 10-day period, the bill was pocket vetoed. Thus, the bill is not a law.

Question 48

May the president of the United States strike a single proposed item from a bill before signing the rest of the bill into law? (Q)

Answer 48

No. The president may not strike a single proposed item from a bill before signing the rest of the bill into law. This action—striking part of a bill before signing the rest of the bill—is called a line-item veto.

A line-item veto changes or amends the bill, and the president does not have the power to amend validly enacted bills. This power belongs to the legislative branch. Thus, a presidential line-item veto violates the separation of powers and is unconstitutional. In addition, Congress may not authorize the president to exercise line-item vetoes.

Question 49

What is a legislative veto? (Q)

Answer 49

A legislative veto is a resolution passed by one or both houses of Congress that nullifies or cancels an administrative action taken by the executive branch. Under current law, Congress may not use a legislative veto to overrule agency action.

The U.S. Supreme Court has held that the legislative veto is unconstitutional for violating the separation of powers. Because legislative vetoes are not signed or otherwise presented to the president, they violate the Presentment Clause. When a legislative veto is exercised by only one house of Congress, this violates the bicameralism requirement, which is the requirement that the president and both houses of Congress approve any bills that become law. Accordingly, Congress may not exercise a legislative veto to effectively prevent executive action.

Question 50

Can Congress enact a statute delegating regulatory or policy-making authority to one of the other branches? (Q)

Answer 50

Yes. Congress can enact a statute delegating regulatory or policy-making authority to other branches. Congress cannot delegate its legislative authority to another branch under the nondelegation doctrine. However, Congress has broad authority to delegate quasi-legislative or policy-making authority to the other branches if the statute includes an intelligible principle to guide the exercise of the delegated authority.

If there is a principle limiting the other branch’s discretion, then Congress has not truly delegated its legislative authority. Rather, Congress has only enlisted help from the other branch to execute Congress’s legislative authority. Open-ended limits on the scope of the delegated discretion usually satisfy the intelligible-principle requirement, such as stating a general purpose or giving a list of factors that the other branch must consider.

Question 51

Congress enacted a statute that gave an executive-branch agency the sole power to establish standards of professional conduct for attorneys. These standards would become the laws governing civil liability for attorney misconduct. The statute did not provide any guidance about what the standards should have been. Instead, the statute transferred that authority to the executive-branch agency. The statute said that the standards would become law once they were published in the Federal Register. The executive-branch agency adopted standards of professional conduct. The standards were published in the Federal Register and became the law governing attorney conduct. An attorney objected to the standards and argued that the Vesting Clause of the Constitution prohibited Congress from transferring its legislative lawmaking power to an executive-branch agency.

Is the lawyer correct? (Q)

Answer 51

Yes. The lawyer is correct. Under the nondelegation doctrine, Congress cannot transfer its power to exercise legislative power. Congress can delegate quasi-legislative or policy-making authority to the other branches if the delegation is guided by an intelligible principle. If there is an intelligible principle limiting the other branch’s discretion, then Congress has not truly delegated its legislative authority. Rather, Congress has only enlisted help from another branch to execute Congress’s authority.

Here, the statute gives the executive-branch agency the legislative power to make professional responsibility laws. This statute does not contain any intelligible principle to guide the agency nor provide limits on the agency’s discretion. This statute is an impermissible delegation of full legislative power that violates the nondelegation doctrine. Thus, the lawyer is correct.

Question 52

The president of the United States wanted to promote electrically powered vehicles. The president asked Congress to give him the authority to impose and adjust a temporary federal tax on the sale of all new, non-electric vehicles in the United States. The president argued that he could be more flexible and respond more quickly to market changes than Congress. If the tax looked like it would hurt too many jobs, then the president could decrease or eliminate it quickly. Congress agreed and enacted a statute that gave the president the authority to set a federal tax on new, non-electric vehicles at a rate between 5 and 10 percent. The statute also listed factors that the president must consider when choosing a rate, such as the probable impact on jobs. Several car manufacturers sued, claiming that the statute violated the nondelegation doctrine.

Are the manufacturers correct? (Q)

Answer 52

No. The manufacturers are incorrect. The nondelegation doctrine states that Congress cannot delegate its legislative powers to another branch. Congress can delegate quasi-legislative authority to another branch if the statute contains an intelligible principle to guide the exercise of the authority. Broad guidance is usually sufficient, such as stating a general purpose or a giving list of factors. As a result, Congress has broad discretion to delegate policy-making power to the executive branch.

Here, the law set clear boundaries on the president’s discretion to choose a tax rate and listed factors that the president must consider when setting the rate. Because Congress put meaningful limits on the president’s power to set the tax rate, the law has a sufficient intelligible principle. This law does not violate the nondelegation doctrine. Thus, the manufacturers are incorrect.

Question 53

What is executive immunity? (Q)

Answer 53

Executive immunity is the protection from personal liability enjoyed by the president and other executive officials. The president enjoys absolute immunity from civil suits for any action within the outer perimeter of his official duties taken while in office. Subordinate executive officials generally have qualified immunity for lawsuits related to actions taken while in office that do not violate clearly established statutory or constitutional rights.

Each branch of the federal government has certain privileges and immunities under federal law that prevent the other branches from improperly interfering with the exercise of its respective executive, legislative, or judicial power. Executive immunity ensures that members of the executive branch may freely enforce and execute the law.

Question 54

What type of executive immunity does the president enjoy? (Q)

Answer 54

The president has absolute immunity from civil suits for any action within the outer perimeter of his official duties taken while in office.

The president may not have similar immunity from criminal prosecution. The president likewise does not have immunity for acts undertaken before he entered office, even if he is sued for those acts while in office.

Question 55

A member of the armed forces was killed during active duty while engaged in a conflict overseas. The member’s family believed that the president of the United States recklessly engaged the member’s unit in that particular conflict. The family wanted to sue the president for wrongful death.

Can the president of the United States be sued for the wrongful death of a member of the armed forces killed while on active duty? (Q)

Answer 55

No. The president of the United States cannot be sued for the wrongful death of a member of the armed forces killed while on active duty. The president enjoys absolute immunity from being held liable for damages predicated on or arising from the president’s official acts.

Here, the president’s actions relating to engaging armed forces overseas are official acts. Therefore, the president is immune from being sued for the wrongful death of a member of the armed forces killed while on active duty.

Question 56

What type of executive immunity do executive-branch officials subordinate to the president enjoy? (Q)

Answer 56

Subordinate executive officials generally have qualified immunity. Qualified immunity protects officials from lawsuits related to actions taken while in office that do not violate clearly established statutory or constitutional rights. Officials with qualified immunity may still be liable for certain torts, omissions, or other activities.

Question 57

May the president withhold confidential information during judicial or legislative proceedings? (Q)

Answer 57

Yes. The president has a qualified privilege to withhold confidential information during court proceedings or to refrain from producing information to Congress if the necessity of protecting the confidentiality of internal communications outweighs countervailing considerations. Because the privilege is qualified, information deemed confidential may be produced for inspection by a judge in his chambers (also known as in camera inspection) to determine whether some or all the documents should be produced.

Although a claim of executive privilege to protect specific national security or diplomatic secrets or to safeguard certain executive communications from exposure during a civil trial might be upheld, a generalized claim of confidentiality will not outweigh the compelling public interest in securing evidence for a criminal trial.

Question 58

What is the source of the president’s qualified privilege to withhold confidential information during judicial or legislative proceedings? (Q)

Answer 58

The president’s qualified privilege is derived from the Constitution. The qualified privilege flows from the nature of the president’s enumerated powers and relates to the effective discharge of those powers. Because the U.S. Supreme Court has concluded that the privilege is a constitutional one, not one based in the common law, Congress cannot limit the privilege through legislation.

Question 59

What is legislative immunity?

Answer 59

Legislative immunity is the immunity from civil liability, grand jury questioning, and criminal prosecution enjoyed by legislators. This immunity is rooted in Article I’s Speech or Debate Clause, which provides that members of Congress may not be arrested or questioned for any speech or debate made in either house. This clause has been interpreted broadly to protect any official legislative activity, including committee reports, resolutions, and voting, as well as certain actions taken by congressional aides. Legislative immunity ensures that members of the legislative branch may freely represent the interests of their constituents without fearing retaliation.

Legislative immunity does not extend to statements made by legislators outside the course of official legislative activity, such as statements in newsletters, press releases, television interviews, and telephone calls.

Question 60

Does the Speech and Debate Clause provide absolute immunity for statements made in conjunction with a speech or debate in either house of Congress? (Q)

Answer 60

Yes. Under the Speech and Debate Clause, the Constitution gives members of Congress absolute immunity for all statements made in conjunction with any speech or debate in either house of Congress. Even an intentionally false, defamatory statement is not actionable if it was made incident to a speech in the House or the Senate.

Question 61

A senator sat on the Senate Armed Services Committee. The day after a hearing involving a particular defense contractor, the senator tweeted that the contractor was wantonly stealing from taxpayers and shamelessly defrauding the Department of Defense. The contractor promptly sued the senator for libel, claiming the tweet was defamatory. The senator argued that the Speech and Debate Clause made him immune from any liability for the tweet.

Does the Speech and Debate Clause protect the senator from the contractor’s defamation claims? (Q)

Answer 61

No. The Speech and Debate Clause does not protect the senator from the contractor’s defamation claims. The Speech and Debate Clause gives a member of Congress absolute immunity from liability for speeches given on the floor of either house of Congress, including immunity from defamation claims. This immunity protects legislative independence and encourages full deliberation of issues during congressional sessions. This immunity extends to a few other legislative acts. However, the immunity does not extend to all official activities, and it does not protect political or outside activities. The immunity does not extend to speeches made outside of Congress, sending constituent mail, or issuing news releases.

Here, the tweet was not part of a floor deliberation. It was an unprotected outside activity, similar to a news release. Thus, the Speech and Debate Clause does not protect the senator.

Question 62

What is judicial immunity? (Q)

Answer 62

Judicial immunity is the immunity federal judges enjoy from civil suits regarding the performance of their judicial functions, as long as the subject matter is within their jurisdiction. A judge who has acted in the clear absence of all jurisdiction does not have judicial immunity.

Judicial immunity ensures that judicial-branch actors may issue decisions and otherwise take judicial action without fearing personal consequences.