THE EXECUTIVE POWER

Question 1

VESTED IN PRESIDENT

Answer 1

• Entire “executive power” is vested in President
• Various executive functions may be & are delegated w/in the “executive branch” by President/Congress

Question 2

DOMESTIC POWERS: Appointment and Removal of Officers

Answer 2

Appointment
- President has power “w/ advice & consent of Senate” to appoint all “ambassadors, other public ministers & consuls, SC judges, & all other US officers, whose appointments are not herein otherwise provided fo
- Congress may vest appointment of such inferior officers, in President alone, in the cts, or in heads of departments.”

Question 3

Appointment of “Independent Counsel” (Special Prosecutor)

Answer 3

• Special prosecutor w/ limited duties of investigating a narrow range of persons & subjects (e.g., to investigate alleged misconduct of gov employee) is an inferior officer.
• Therefore, under the Appointment Clause, Congress is free to vest the power to appoint a special prosecutor in the judiciary.

Question 4

No Appointments by Congress

Answer 4

• Although Congress may appoint its own officers (its staff), it cannot appoint members w/ admin/ enforcement powers
• US officers must be appointed by President w/ senatorial confirmation unless Congress has vested their appointment in President alone, in fed courts, or in heads of departments.

Question 5

Recess Appointments

Answer 5

• Recess Appointments Clause: Gives President power to make appointments for vacancy w/o Senate approval during any Senate recess of “sufficient duration.”
• Senate is in recess only when it states it is in recess.
• If Senate does not declare a recess & it holds brief sessions, Senate is not in recess & President has no power to make appointments w/o Senate approval

Question 6

Removal

Answer 6

• Constit is silent except for ensuring tenure of all Article III judges “during good behavior.

Question 7

By President

Answer 7

• President can remove high level, purely executive officers (e.g., Cabinet members) at will, w/o Congress interfering.
• Congress may not restrict President from removing the head of an independent agency if that person is the sole director & has significant executive power.
• However, Congress may create statutory limits (e.g., removal for good cause) on President’s power to remove all other executive appointees.

Question 8

Limitation on Removal Power

Answer 8

• Congress cannot give itself power to remove an officer charged w/ execution of laws except through impeachment.
• A congressional attempt through legislation to remove from gov employment specifically named gov employees is likely to be held invalid as a bill of attainder.

Question 9

Limitation on Powers of Removable Officers

Answer 9

• Congress cannot give a gov employee who is subject to removal by Congress any truly executive powers

Question 10

Pardons

Answer 10

• President has power “to grant reprieves & pardons for offenses against US, except in cases of impeachment.”
• Power applies before, during, or after trial, & extends to criminal contempt, but not to civil contempt when 3rd parties are involved
• Pardon power cannot be limited by Congress, & includes power to commute a sentence on any conditions President chooses, as long as they are not independently unconstitutional.

Question 11

Veto Power

Answer 11

• Every act of Congress must be approved by President b/f taking effect, unless his disapproval is overridden by 2/3 vote of each house

Question 12

President Has Ten Days to Veto

Answer 12

• President has 10 days (excluding Sundays) to exercise veto power.
• If he fails to act w/in that time:
  1) Bill becomes law if Congress is still in session; or
  2) Bill is automatically vetoed if Congress is not in session (a “pocket veto”).
• Note: Brief recesses during an annual session create no pocket veto opportunity

Question 13

Line Item Veto Unconstitutional

Answer 13

• President can only approve/reject a bill in whole
• Cannot cancel part (through a line item veto) & approve other parts.

Question 14

Power as Chief Executive

Answer 14

• President’s power over internal (w/in US) affairs as chief executive is unclear.
• Clearly President has some power to direct subordinate executive officers, & there is a long history of presidents issuing executive orders.
  (i) Where President acts w/ express/implied authority of Congress, his authority is at its max & his actions likely are valid;
  (ii) Where President acts where Congress is silent, his action will be upheld if act does not take over powers of another branch/prevent another branch from carrying out its tasks (ex. President’s invocation of executive privilege was invalidated b/c it kept fed cts from having evidence they needed to conduct a fair criminal trial); and
  (iii) Where President acts against express will of Congress, he has little authority & action likely is invalid.

Question 15

No Power to Impound and the Take Care Clause

Answer 15

• President has no power to refuse to spend funds when Congress has expressly required they be spent.
• Take Care Clause: President “shall take care that the laws be faithfully executed

Question 16

POWER OVER EXTERNAL AFFAIRS

Answer 16

• Although lacking power to declare/initiate a “formal” war, President has extensive military powers (essentially an external field, although applicable to civil war & to many domestic affairs caught up in military necessities).

Actual Hostilities
- President may act militarily as commander in chief, in actual hostilities against US w/o a congressional declaration of war.
- But Congress may limit President under its power to enact a military appropriation every 2 years. (A military appropriation may not be for more than 2 years.)

Military Government
- This power includes establishment of military govs in occupied territories, including military tribunals.

Question 17

Foreign Relations

Answer 17

• President’s power to represent & act for US in day-to-day foreign relations is paramount.
• He has power to appoint & receive ambassadors & make treaties (w/ Senate approval), & to enter into executive agreements.
• His power is broad even as to foreign affairs that require congressional consent.

Question 18

Power to Recognize Foreign States

Answer 18

The power to recognize foreign states lies exclusively with the president.

Question 19

Standard of Review—Rational Basis at Most

Answer 19

• Generally, cts defer to President & Congress regarding foreign affairs.
• When reviewing whether an act violates a constitutional right, cts apply rational basis review.

Question 20

Treaty Power
”

Answer 20

• Granted to President “by & w senate approval, if 2/3 of Senators present agree.

Question 21

Supreme Law

Answer 21

• Like other fed law, treaties are “supreme law of the land.”
• Any state action/law in conflict w/ US treaty is invalid (regardless of whether it is a state law/state constitutional provision).

Question 22

Self-Executing vs. Non-Self-Executing Treaties

Answer 22

• Some treaties are expressly/ impliedly self-executing (i.e., they are effective w/o any implementation by Congress)
• Others are not effective unless & until Congress passes legislation to effectuate their ends.
• If a treaty is not self-executing, it is not treated as supreme law of the land until Congress acts to effectuate it, but treaty itself can serve as an independent basis for Congress’s power to adopt the required legislation (i.e., Congress need not point to one of its enumerated powers, like commerce power, as basis for legislation).

Question 23

President Has No Power to Implement Non-Self-Executing Treaties

Answer 23

• President generally does not have any independent power to issue a “memorandum” ordering compliance with a non-self-executing treaty that has not been put into effect by legislation of Congress.
• Ex. President had no power to enforce provisions of the Vienna Convention (a non-self-executing international treaty) by issuing a memo requiring states to grant habeas corpus petitions to reconsider convictions of criminals who are foreign nationals & who were not informed at the time of their arrest of their right to notify their consulate of their detention

Question 24

Conflict with Congressional Acts

Answer 24

• Conflict between an act of Congress & treaty is resolved by order of adoption—last in time prevails.

Question 25

Conflict with Constitution

Answer 25

• Treaties are not co-equal w/ Constit
• Ex. no treaty (or executive agreement) could grant Congress authority to act in a manner inconsistent w/ any specific Constit provision

Question 26

Other Limitations

Answer 26

• Other substantive limits on treaty power have not been judicially established
• But Ct expressed that a treaty could not upset basic structure of federalism, or wield a power barred to national gov by Constit, or give up any part of a state to a foreign nation w/o state’s consent.
• Ct has never held a treaty unconstitutional (ex. a case invalidated an executive agreement for violating 5th Amend), but it is conceivable that treaty power extends only to subjects plausibly bearing on our relations w/ other countries

Question 27

Executive Agreements

Answer 27

• President’s power to enter into agreements (executive agreements) w/ heads of foreign countries is not expressly provided for in Constit
• Executive agreements can probably be on any subject if they do not violate Constit.
• They are very similar to treaties, except that they do not require Senate consent.

Question 28

Conflicts with Other Governmental Action

Answer 28

• Executive agreements that are not consented to by Senate are not “supreme law of the land.
• Thus, conflicting fed statutes & treaties will prevail over an executive agreement, regardless of which was adopted first
• However, executive agreements prevail over conflicting state laws.

Question 29

Example—Power to Settle Claims of United States Citizens

Answer 29

• President, w/ implied approval of Congress, has power to settle claims of US citizens against foreign govs through an executive agreement.

Question 30

EXECUTIVE PRIVILEGE/IMMUNITY
.

Answer 30

Executive Privilege
- Not a constitutional power, but an inherent privilege necessary to protect confidentiality of presidential communications

Question 31

Extent of the Privilege

Answer 31

• Presidential docs & convos are presumptively privileged, but privilege must yield to need for such materials as evidence in a criminal case to which they are relevant & otherwise admissible.
• Determination must be made by trial judge after hearing evidence.

Question 32

National Security Secrets

Answer 32

• Military, diplomatic, or sensitive national security secrets are given great discretion by cts.

Question 33

Criminal Proceedings

Answer 33

• In criminal proceedings, presidential official communication will be available to prosecution, where a need for such info is shown

Question 34

State Criminal Proceedings

Answer 34

• Presidents are subject to state criminal subpoenas of President’s personal records—such records are not under executive privilege.
• President, like any other citizen, can challenge such subpoenas on state law grounds (ex. bad faith & undue burden/breadth) & constitutional grounds (ex. influencing/interfering w/ President’s official duties)

Question 35

Civil Trials

Answer 35

• Ct has avoided ruling on scope of executive privilege in a civil case.
• Need for info in a criminal case is “weightier,” & Executive’s withholding of info in a civil trial would not impair judiciary’s ability to fulfill its responsibility to resolve cases as much as in a criminal trial.
• Thus, it appears that an Executive branch decision to withhold info will be given more consideration in a civil trial than criminal trial.

Question 36

Screening Papers and Recordings of Former President

Answer 36

• A fed statute requiring Administrator of General Services to screen presidential papers is valid, in spite of privilege.

Question 37

Screening by Judge in Chambers

Answer 37

• Ct will determine in an in-camera inspection which communications are protected & which can be disclosed

Question 38

Executive Immunity

Answer 38

Absolute Immunity for President
- President has absolute immunity from civil damages based on any action he took w/in his official responsibilities (even if action was only w/in “outer perimeter” of presidential responsibility).
- However, President has no immunity from private suits in fed cts based on conduct that occurred b/f taking office.
- Rationale: The immunity is intended only to enable President to perform his designated functions w/o fear of personal liability.

Question 39

Immunity May Extend to Presidential Aides

Answer 39

• Presidential aides share in this immunity only if exercising discretionary authority for President in “sensitive” areas of national concern, such as foreign affairs.
• Other aides are entitled only to a qualified immunity (a “good faith” defense).

Question 40

IMPEACHMENT

Answer 40

Persons Subject to Impeachment
- President, VP, & all US civil officers are subject to impeachment.

Grounds
- Treason, bribery, high crimes, & misdemeanors.

Impeachment by the House
- A majority vote in the House is necessary to invoke charges of impeachment.

Conviction by the Senate
- A 2/3 vote in Senate is necessary to convict.