The Executive Power Flashcards
President’s Power
Article II vests the executive power in the president
The president has the power to:
– carry out and enforce federal laws
– represent the US in its foreign relations
– run the government
– commander in chief of armed forces
– grant pardons
– with advice and consent of senate, make treaties
– with advice and consent of senate, appoint judges, ambassadors, and offices of US
– take care that the laws be faithfully executed
Domestic Powers of President
The president has the express power to faithfully execute the laws. Outside of that, the president’s power over domestic affairs must stem from either an act of congress or from the constitution
President’s Inherit or Implied Powers
1) When the president acts pursuant to an express or implied authorization of congress, presidential authority is at a maximum and actions are likely valid
2) When the president acts in the absence of either congressional grant or denial of authority, the president may rely on his powers granted in the constitution and the zone of twilight in which he and congress may have concurrent authority.
3) when the president acts against the express or implied will of congress, the president may only rely upon his own constitutional powers minus any congress may have over the matter. The action is likely invalid.
Appointment Powers
The president appoints ambassadors, justices of the Supreme Court, and other officers of the US whose appointments are not otherwise provided, with the advice and consent of senate
Congress can vest the appointment of inferior officers in the president alone, the courts, or the heads of the department.
However, congress itself may not appoint members of a body with administrative or enforcement powers.
Removal Power
The president can remove high level, purely executive officers at will, without any interference by Congress.
Congress cannot restrict the president from removing the head of an independent agency if that person is the sole director and exercises substantial discretion
However, congress can provide statutory limitation (good cause) on the president’s power to remove all other executive appointees
NOTE - congress can remove an executive officer only through the impeachment process
Pardons
The president may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by congress.
Veto Power
If the president vetos an act of congress, the act may still become a law if the veto is overriden by a two thirds vote in each house.
Pocket Veto - The president has ten days to exercise the veto power. IF the president fails to act within that time, the bill is automatically vetoed if congress is not in session. If congress is in session, the bill becomes law.
President’s War Power
The President has no power to declare war, but the president, as commander in chief, can act militarily in actual hostilities against the US without a congressional declaration of war to protect American lives and property.
NOTE - challenges to the President’s conduct as commander in chief is likely to be viewed as a nonjusticiable political question
Treaty Power
The president has the power to enter into treaties with the consent of two thirds of senate
Like other federal laws, treaties that are self executing are the supreme law of the land
Conflicts with Treaties
If a state law conflicts with a self executing treaty, the state law is invalid
If there is a conflict between a treaty and federal law, the last law in time prevails
If there is conflict between a treaty and the constitution, the constitution wins (a treaty may not be inconsistent with the constitution)
Executive Agreements
Executive agreements are signed by the president and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the senate.
If a state law conflicts with an executive agreement, the agreement prevails
If an executive agreement conflicts with a federal law, the federal law prevails
Executive Privilege
The executive privilege, implied by the constitution, holds that the president has a qualified privilege to keep confidential any communications with advisors
When the communication concerns national security interests, the privilege is generally absolute
When communications don’t concern national security interests, the court will weigh the importance of the privilege with the fair administration of justice
Exception to Executive Privilege
A demonstrated specific need for evidence in a pending criminal trial can overcome the assertion of privilege
Additionally, the president is subject to state criminal subpoenas of the President’s personal records - such records do not fall under the executive privilege
Executive Immunity
The president has absolute immunity from civil liability for official acts taken while president
The president does not have immunity from, or the right to delay lawsuits for, unofficial conduct, even while president
The president is not absolutely immune from grand jury subpoenas nor are they subject to a heightened standard of need
Congress may seek information from the president by issuing subpoenas, if the information is needed for a valid legislative purpose
Impeachment
The president, vice president, and all civil officers of the US are subject to impeachment
Grounds include treason, bribery, and high crimes and misdemeanors.
A majority vote in the house is necessary to bring impeachment charges, and a two thirds vote in the senate is necessary to convict and remove from office
