Fed Executive Pwr

Question 1

FOREIGN POLICY POWERS OF POTUS

What 3 ways canPOTUS exercise his foreign policy pwr?

***Bar Exam Tip

Answer 1

THE THREE MAIN FOREIGN POLICY POWERS HELD BY THE PREZ ARE EXERCISED AS FOLLOWS:

1) TREATIES = agmts b/t the US and a foreign country They are NEGOTIATED by POTUS, but ONLY EFECTIVE when RATIFIED by the Senate:
Key elements of TREATIES:
(a) State laws that conflict w/ treaties are INVALID
(b) If a treaty conflicts w/a fed statute, the one adopted
LAST IN TIME cntrls (over the earlier one)
(c) If treaty conflicts w/US Const., the treaty is INVALID

2) EXECUTIVE AGREEMENTS = agmt b/t the US and a foreign country that’s effective when signed by POTUS (ALONE) and the head of the foreign gov’t
Key elements of Executive Agreements:
(a) Executive agmts can be used for any purpose → anything that can be done w/ a treaty CAN be done through an executive agreement
(b) Executive agmts prevail over conflicting state laws, BUT NOT conflicting federal laws OR the US Const

3) COMMANDER IN CHIEF POWERS = PREZ has BROAD pwrs as CIC to use American troops in foreign countries

NOTE: The Prez ALWAYS win when using U.S. troops in foreign countries no matter what – EVEN IF there is NO WAR

***On the BAR EXAM, if there is a challenge to the PREZ CIC power and use of troops, the answer will be: “the case is dismissed as a political question

Question 2

APPOINTMENT PROCESS: Officers and Inferior Officers

What is the appointment process for “officers” and “inferior officers”?

*** Bar exam Tip

Answer 2

1) “Officers”: are appointed by POTUS w/ Senate approval
* This is a presidential domestic power

2) “Inferior officers”: Congress MAY vest appointment in:
(i) POTUS;
(ii) heads of Depts; OR
(iii) lower fed cts

***WATCH out on BAR Exam: Congress cannot give itself appointment powers

NOTE: An “officer” has firing pwr, whereas “inferior officers” DO NOT

Inferior officer = Someone who can be fired by an Officer of the U.S. – e.g. the Secretary of State can fire the undersecretary of the U.S.

Question 3

APPOINTMENT PROCESS: Ambassadors

What is the appointment process for ambassadors?

Answer 3

Requires appointment by POTUS and approval by SENATE

*This is a presidential domestic power

Question 4

APPOINTMENT PROCESS: Federal Judges

What is the appointment process for federal judges?

Answer 4

Requires appointment by POTUS and approval by SENATE

*This is a presidential domestic power

Question 5

REMOVAL POWER

What pwr does POTUS have to remove executive branch officials?

Answer 5

POTUS may fire ANY executive branch officer, UNLESS that pwr is limited by Congress

Congress can limit power IF…
(i) Prez removal power limitation is placed an office where independence from the President is desirable (e.g. an independent council);
AND
(ii) Prez removal power limitation is not a PROHIBITION on removal — Congress may not prohibit removal but can limit it to requiring a showing of “good cause” for the removal

Question 6

IMPEACHMENT AND REMOVAL - Who and For What

What federal officers can be impeached, and for what acts?

Answer 6

1) Potential for Impeachment and Removal from office applies to Federal Officers which includes:
(i) POTUS
(ii) VPOTUS
(iii) Federal judges
(iv) Officers of the US

2) Impeachable and Removal Acts =
(i) Treason
(ii) Bribery
(iii) High crimes/misdemeanors

Question 7

IMPEACHMENT AND REMOVAL - PROCEDURE

What doesimpeachment and conviction req?

Answer 7

1. Impeachment requires a MAJORITY vote by the House of Reps

NOTE: impeachment ONLY doesn’t remove a person from office – Must ALSO have Conviction

2. Conviction requires 2/3rds MAJORITY vote by the Senate

Question 8

PREZ IMMUNITY TO CIVIL SUITS

What is the scope of POTUS’s immunity from suit?

Answer 8

POTUS has ABSOLUTE immunity to CIVIL suits for MONEY damages for actions WHILE in office

NOTE: POTUS does NOT have immunity for actions that occured PRIOR to taking office

Question 9

EXECUTIVE PRIVILEGE

What is the scope of executive privilege?

Answer 9

POTUS has executive privilege for presidential papers and conversations…

BUT such privilege MUST YIELD to other IMPORTANT gov’t interests (e.g. a criminal trial)

Question 10

PREZ PARDON POWER

What is the scope of POTUS’s pardon pwr?

Answer 10

POTUS has the pwr to pardon anyone accused or convicted of FEDERAL (NOT state) CRIMES

EXCEPTION: POTUS may not pardon a person who has been impeached by the House — can NEVER be pardoned for an IMPEACHMENT

NOTE: This pwr does NOT apply to CIVIL liability
→ example: NO PARDON allowed for a civil contempt that comes with JAIL time

NOTE: No pardon for STATE crimes!

Question 11

APPOINTMENT PROCESS: Appointments during Intrasession Recesses

Answer 11

The President CANNOT make recess appointments for

intrasession recesses that are LESS THAN 10 days