Con Law: Executive Powers Elements

Question 1

What are the main powers of the President?

Answer 1

1. Enforcement of laws;
2. Commander in chief;
3. Appointment powers;
4. Removal powers;
5. Pardon power; and
6. Veto powers

Article II, Section 1

Question 2

What are the President’s appointment powers?

Answer 2

Can appoint high-level officers with advice and consent of the Senate

Appointments Clause: Article II, Section 2, Clause 2

Question 3

What are inferior officers and how can they be appointed?

Answer 3

Officers whose work is supervised by superiors that were appointed by the President and confirmed by the Senate (i.e. through standard appointment process).
Congress can delegate power to appoint inferior officers to:
1. The President (can appoint without approval of Senate);
2. The courts; or
3. Heads of executive departments

Question 4

Can Congress directly appoint federal executive officers?

Answer 4

No, cannot appoint officers of the United States (i.e. officers with enforcement or administrative powers)

Question 5

Can Congress remove an executive branch official?

Answer 5

Yes, but only by impeachment.

Question 6

What are the President’s removal powers?

Answer 6

Can remove high-level executive appointees without cause

⚠️ Exception: must show cause to remove:1. Officer performing a judicial or quasi-judicial role; or2. Officer appointed for a statutorily specified duration

Question 7

Can Congress limit the President’s removal power?

Answer 7

Yes, can statutorily limit removal to only upon a showing of good cause for officers appointed for a specific duration of time (e.g. Special Prosecutor)

Question 8

How can federal judges be removed?

Answer 8

Only by impeachment. Cannot be “during good behavior”## Footnote

(Article III, Section 1)

Question 9

What are the President’s veto powers?

Answer 9

Power to veto any law passed by both houses within 10 days of receiving it (if no veto, bill automatically becomes law)

Article I, Section 7

Question 10

Define: pocket veto

Answer 10

If the president fails to act during the veto period and Congress is not in session, the bill will be automatically vetoed.
If Congress is in session, the bill will become law.

Question 11

Define: line item veto

Answer 11

Vetoing specific lines or parts of a bill without vetoing the whole.
Unconstitutional.

Question 12

Can Congress override a Presidential veto?

Answer 12

Yes, with a 2/3 majority vote in House and the Senate

Question 13

What are the President’s pardon powers?

Answer 13

• Power to pardon or commute sentences for criminal, federal crimes*
• Cannot pardon those who have been convicted and impeached

Article II, Section 2

Question 14

Can Congress limit the President’s pardon powers?

Answer 14

No

Question 15

Define: executive privilege

Answer 15

Qualified privilege that protects the President from having to disclose confidential communications related to his/her Presidential duties (e.g. national security, military or diplomatic secrets)

Question 16

When can executive privilege be overruled?

Answer 16

By a showing of compelling government interest.

For example, in U.S. v. Nixon, privilege overruled because of the compelling interest in disclosure of Presidential communications for criminal trial.

Question 17

What type of conduct is covered by executive immunity?

Answer 17

Conduct during office for official duties

⚠️ No immunity for actions before President took office or those unrelated to official duties

Question 18

What is the President’s treaty power?

Answer 18

Power to make treaties with foreign governments, must be ratified by 2/3 of the Senate

Question 19

If a treaty conflicts with federal law, which will take priority?

Answer 19

Whichever was signed most recently

Question 20

If a treaty conflicts with a state law, which one has priority?

Answer 20

Treaty

Question 21

If a treaty conflicts with the Constitution, which one prevails?

Answer 21

Constitution

Question 22

Define: executive agreement

Answer 22

Agreement made with a foreign nation that does not require 2/3 Senate approval

Question 23

If an executive agreement conflicts with a federal statute or treaty, which one has priority?

Answer 23

federal statute or treaty

Question 24

If an executive agreement conflicts with a state law, which one has priority?

Answer 24

executive agreement

Question 25

What is the President’s authority as Commander in Chief?

Answer 25

• Can only take military action to defend a sudden, hostile attack* Cannot declare war (only Congress)

⚠️ The extent of the President’s military authority is much contested and unclear. For more info, see Commander in Chief Powers

Question 26

For what reasons can the President, Vice President, or other federal officers be impeached?

Answer 26

For treason, bribery, and other “high crimes and misdemeanors”

Article II, Section 4

Question 27

What is the impeachment process?

Answer 27

Step 1: House of Representatives votes to impeach (majority vote); then Step 2: Senate conducts a trial and votes to convict and remove from office (2/3 vote)