Executive Power

Question 1

What is the vesting clause in Article 2

Answer 1

A2 vests the executive power in a president of the USA. Some powers can be traced to vesting clause while othes are derived from more specific provisions of A2.

Question 2

What is the Article 2 Take Care clause

Answer 2

Pursuant to the Take Care Clause, the president is responsible for carrying out and enforcing federal law.
Under this the president may issue executive orders, which are presidential decrees that have a force of law.

Question 3

What are limits on presidential power under Youngstown?

Answer 3

1. Maximum Power (president and Congress act together)
2. Zone of Twilight (Congress is Silent)
3. Lowest Ebb (President acts against Congress)

Question 4

What can the President do under Maximum power

Answer 4

• President has the broadest power to act if C has provided express or implied authorization.
• IF this is the case, President acts with the entire power of the USFG.

Question 5

What can the president do under Zone of Twilight

Answer 5

• If C has remained silent, the P may only rely on his own A2 powers.
• If the matter is one in which the legislative and executive powers overlap (or is otherwise unclear), then P might be given more latitude.

Question 6

What can the president do under the Lowest Ebb

Answer 6

• P has least power to act if C has expressed or implied an intent contrary to the president’s actions.
• P can rely only on his A2 power minus whatever power C may have over the matter.

Question 7

What are inferior officers under Appointment and Removal Powers

Answer 7

Those officers whose work is directed and supervised by principal officers
Four factors to consider:
1. Subject to removal by a higher executive branch official
2. Empowered to perform only specific, limited duties
3. Vested with limited jurisdiction
4. Given limited tenure

Question 8

What is the presidential appointment authority for inferior officers

Answer 8

President may also appoint inferior officers but Congress has the authority to decide whether an inferior officer may be appointed by someone else.

Question 9

Who is a principal officer

Answer 9

Generally it’s someone who is nominated by the president and confirmed by the senate

Question 10

What is the appointment authority for principal officers

Answer 10

President nominates superior officers who must then be confirmed by a majority vote in the senate

Question 11

What is the removal authority for principal officers

Answer 11

• President has the exclusive power to remove purely executive officers (like the Postmaster General).
• Congress can limit removal (e.g., “for cause only”) for officers of independent agencies performing quasi-legislative or quasi-judicial functions (like the FTC)

Question 12

What are four theories of presidential removal authority

Answer 12

1. Executive power theory
2. Advice and Consent
3. Congressional Delegation
4. Impeachment

Question 13

Executive Power Theory:

Answer 13

Removal is an executive power, which is given to the president under Article

Question 14

Advice and Consent Theory:

Answer 14

If senate’s advice and consent was necessary to appoint, it is necessary to remove.

Question 15

Congressional Delegation:

Answer 15

Congress has the ability to create and dictate the terms of removal

Question 16

Impeachment Group:

Answer 16

Because it is apparent in the constitution, Impeachment is the only available means of removing executive officials

Question 17

Unser Seila Law, what is the president’s removal power and what are the exceptions

Answer 17

There is complete presidential
power to remove to remove officers, regardless of statutory protections from removal.
Exceptions:
(1) multi-member bodies of experts who are balanced along partisan lines, appointed to staggered terms, perform only “quasi-legislative” and “quasi-judicial functions,” and arguably do not exercise any executive power (see Humphrey’s) and
(2) inferior officers who
have limited duties and no policymaking or administrative authority (Morrison).

Question 18

What is presidential immunity to civil liabitily

Answer 18

• Absolute immunity for acts within “outer perimeter” of official responsibilities

Question 19

Presidential Immunity on Criminal Liability

Answer 19

• No immunity from criminal subpoenas or investigations

Question 20

Are official or unofficial acts covered by immunity?

Answer 20

Official Acts: Covered by immunity
Unofficial Acts: No immunity

Question 21

What is the scope of Executive Priviledge

Answer 21

Exists but is not absolute
Courts must balance:
- The need for presidential confidentiality
i- Against the need for evidence in the administration of justice
In criminal cases: evidence > confidentiality
In civil cases: More deferential to confidentiality bc lower stakes.

Question 22

What is a legislative veto

Answer 22

• Legislative Disapproval of agency action that is short of enacting a law. Under the constitution, all legislative acts must:
  o Pass through bicameralism
  o Undergo presentment

Legislative: Any act by congress that alters rights or duties of persons or agencies without following the two steps are unconstitutional

Question 23

Legislative Veto test

Answer 23

If it legislative? If yes, did it have both of the above?
- bicameralism and
- presentment

Question 24

What are the three kinds of legislative veto

Answer 24

1. Committee Veto
2. Whole house veto
3. Two house veto

Question 25

What are three kinds of executive privilege

Answer 25

State Secrets Privilege: Matters of national security; requires articulated justification. Presidential Communications Privilege: Confidentiality between the President and advisors (most frequently litigated today). Deliberative Process Privilege (implied by context; protects internal government deliberations).