Separation of Powers Flashcards
does the president have the power to make law (3 part test)
• If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights - not just govt EE rights!), use the following test:
- i. if Congress has explicitly or implicitly approved the president’s action, the president has the full power of federal government to make law
- ii. if Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?)
- iii. if Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional
can potus impound funds
• If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound” funds Congress has ordered spent
may congress increase exec’s power to make law
– Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making (i.e. an intelligible principle)
rule for legislative vetoes
– A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto
– Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause
rule for line item veto (and what is it)
– unconstitutional - POTUS has to sign or not sign the Bill, he can’t cross stuff out
appointment of exec officials (what is an exec official? superior officer? inferior officer?)
– executive officer: someone exercising “significant executive authority” – i.e. writing/enforcing regulations, making final decisions
• **pure investigation/information gathering is more legislative (so Congress should be able to appoint those people)
– for principal officers (e.g., cabinet members), the president nominates and the senate confirms
– for inferior officers (positions created by Congress, such as the independent counsel), Congress may give the appointment power to president alone, an agency department head, or the courts
• Although Congress may appoint its own officers to carry on internal legislative tasks, Congress may not appoint anyone with administrative, enforcement, regulatory, or executive duties
rule and exception for removal of exec officials
– General Rule: the president may fire any executive official for any reason
– Exception: Congress may require the president to have “good cause” to fire an employee of the executive branch if the position requires some independence from the president (e.g., an independent counsel or a person who has quasi-judicial duties)
– Congress may not retain the power to remove an executive official; it only has impeachment power
presidential powers: treaties, executive agreements; recognizing foreign states; order of preeminence
– Treaties are signed by the President and ratified by the Senate
– The president may use executive agreements as substitutes for treaties; no senate ratification is required, and the president may use these agreements as the basis for issuing executive orders (domestic regulation)
– The power to recognize foreign states lies exclusively with the president, and the President and his subordinates are the exclusive official representatives of the United States in foreign affairs
– If laws are in conflict, the following preeminence governs:
• U.S. Constitution
• Federal Statutes/Treaties (last in time controls)
• Federal Executive Agreements/Orders
• Federal Regulations
• State Laws
issue of war powers
– The war powers are shared between the president and Congress; Congress declares war and allocates money for the military; the president ALONE controls troops and deployment (including use of troops for emergency measures)
– generally, POTUS has been allowed to send troops into foreign hostilities/aid without congressional approval/a formal declaration of war
potus and criminal prosecutions
– The president is probably immune from criminal prosecution while in office
– Executive Privilege: The president’s communications and papers are presumptively privileged, but the president must comply with subpoenas from criminal courts or grand juries
»> Congress can subpoena personal records if it can establish that the subpoena advances A LEGITIMATE LEGISLATIVE PURPOSE
potus and civil actions
– The president has ABSOLUTE immunity from civil liability for claims (at least those arguably based on official actions) arising while in office
• Presidential aides and advisors have a QUALIFIED immunity from civil damages; such immunity will not protect them for violations of clearly established constitutional rights
– The President is subject to civil liability for claims arising prior to taking office
potus and impeachment
– The president, vice-president, judges, and “officers” of the U.S. may be impeached
– The house “impeaches” (i.e., indicts) by a majority vote; the senate convicts (i.e. removes) by a 2/3 vote
– Impeachment may be for high crimes, misdemeanors or treason, but these terms are defined exclusively by Congress, and such issues are political questions
potus pardon power
- The president has the power to pardon and commute sentences for federal crimes, but not state crimes or civil liability
- The president’s pardon power may not be limited by Congress
- The president may not pardon a person for “crimes” for which he or she has been “impeached”
speech and debate clause (rule and two exceptions)
• rule: protects members of the U.S. Congress from criminal or civil liability for all statements (oral or written) they make in the House or Senate. The immunity extends to aides who engage in acts that would be immune if performed by the member of Congress.
• Exceptions:
– 1. The Speech or Debate Clause does not extend to state legislators.
– 2. Speeches and publications made outside of the House or Senate are not protected.
