Federal Executive Powers Flashcards
(37 cards)
Art II, Sec 2 Express Powers
Treaties; Commander in Chief; Pardon Power; Appoint Ambassadors, Judges, Foreign Ministers; Vacancies; Veto Power; State of the Union; Foreign Relations Power
Federal Executive Powers
Art II, Sec 1 provides that “the executive power shall be vested in a President of the US of America”. This provision confres broad authority to the Pres to execute laws of the US. Although there are few powers expressly granted to the president under Art II, much of the Pres’s domestic and foreign powers are implied. The Supreme Court has emphasized strongly that the Pres has no power to make the laws, but has the power to execute them.
Executive Implied Powers
Legally, there are no implied powers
Executive Inherent Powers
Everything outside of the statutes/ constitution to execute/enforce
-Not from statutes or Constitution (sort of like a CEO), can’t outline everything that the executive needs to do.
Youngstown v. Sawyer (1952)
- Facts: Mills closed during the war. President issued an executive order to keep mills open. His reasoning: it affects national defense and as commander in chief of military, he has power to stop closures.
- Held: SC invalidated Pres’s order directing seizure of steel mills to prevent a threatened strike. Court says Pres cannot usurp congress’s law-making authority.
Youngstown Analysis of Pres non enumerated powers by Jackson
1) Power at Maximum:
==When president acts in accord with express/implied authorization of Congress
==If Congress gives express/implied authorization of Congress, President will have power all the time except fo
2) “Zone of Twighlight” - Congress is Silent (no approval/no denial)
==Congress is silent (no approval/denial). when the president acts in absence of either a congressional grant/denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and congress may have concurrent authority or in which its distribution is uncertain. Imperative events and grey areas - everything has to be taken into account on case by case basis.
3) Power at minimum: Contrary to express or implied will of Congress
==When the presidential actions are contrary to expressed/implied will of Congress. He can only rely upon his constitutional powers minus the constitutional powers of congress. Actions would most likely be struck down. (Emergency does not create exec power, even though the leg is usually slower to act)
Executive Privilege
- The president has an absolute privilege to refuse disclosure of info relating to military, diplomatic or senstive national security events. However, other confidential communications between the president and his advisors are only presumptively privileged. (US v Nixon 1974)
- Absolute evidentiary privilege not to divulge info
- Executive privilege exists but must yield to important interests – Need vs. General Interest to divulge information. Nixon’s argument was not within things related to national security.
Political Question Doctrine
Certain questions are not justiciable becaus they are politcial and revolve around executive power.
- May implicate seperation of powers - line between congressional and presidential power
- Resolution may be committed to another branch - usually something decided by who gets elected.
Intra Branch Dispute
Non Justiciable.
“Unitary executive” theory means exec branch is unitary, and all members are part of one unit. Nixon’s argument when asked about things and he said it would be self incriminating to answer.
How to Analyze Executive Powers
- CQ1: is there express statutory or congressional grant of power?
- CQ1b: Jackson’s (inherent) executive power analysis
- CQ2: Is it otherwise a violation of the Constitution?
Ability of Congress to Increase Executive Power
-Clinton v. City of NY
== Line item veto would give the president the power to cancel portions of new federal legislation, but it was held unconstitutional. Congress cannot give away their power, because this is inconsistent with Art 1, sec7: seperation of powers.
Presidential Veto Power
Art I, Sec 7
Allows president to veto a bill, Once Congress has approved legislation, the President has 10 days in which to act upon it. Unless he vetoes it within the 10 day period, the proposed legislation will become law.
A president can pocket veto a bill not passed at the end of the congressional term by not signing it.
Silence by constitution is construed as prohibition as to whether the President can unilaterally repeal or amend parts of bills.
Non Delegation Doctrine
Principle that Congress may not delegate its legislative power to admin agencies. The doctrine forces Congress to make policy choices rather that leaving this to unelected admin officials. (violates separation of powers)
Form v. Purpose
==Purpose: to effectively run a natl govt, we can only do that by abandoning this doctrine.
==Form: only in the context of ArtI, Sec 7
ALA Schechter Poultry v. US (1935)
Congress passed an act which delegated powers to the President who would regulate certain industries by creating codes of conduct. Didn’t not give him guidelines.
-held that Congress couldn’t delegate.
Whitman v. American Trucking (2001):
- Death of the Non Delegation doctrine. SC doesn’t enforce it now. As long as Congress gives mere pretense of guidelines, then it is okay.
- Court held that providing agencies with some level of discretion in setting regulations is not unconstitutional.
Legislative Veto
Questions how the power of administrative agencies will be checked and controlled if non-delegation doctrine is dead.
Congress could enact laws overturning an agency’s rule but legislative action takes time and they feel its more efficient to delegate control
Created as a check on administrative agencies by having statutes enacted including provisions authorizing either house to overturn an agency’s actions.
INS v. Chadha (1983)
SCOTUS ruled legislative veto is unconstitutional because of problems with bicameralsim (both houses) and presentment (formally given to president). this is the process of writing laws set by the constitution
How Congress may check Administrative Agency Powers
- Write a law that overturns an agency’s code, following the proscribed procedures for bicameralism and presentment. President may veto those statutes, meaning Congress would have to gather 2/3 vote.
- Control of budget of administrative agencies.
Appointment Power
-Article II, Sec 2 gives the President the power, “with the advice and consent of the Senate” to nominate and appoint all “ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the US, whose appointments are not herein otherwise provided fo”
Principal Officer
Highest level (broadest authority and participates in formulating policy for the executive branch. -Nominated by President (ex. Ambassadors and cabinet members) Process: recommended by Pres ->senate committee->full senate-> advice and consent (50%+) majority
Inferior Officer
-If congress says nothing, President can appoint (default). But Congress has the power to choose the person who can appoint.
-Congress can delegate appointment to either:
=The President
=The Judiciary, or
=Heads of departments
But congress cannot assign the task to legislative members.
Employees
Layer of people below the inferior officers
No substantial policy related responsibilities (ex: janitor at White House)
Appointment Power: Morrison v. Olsen (1988)
- Upheld statute under which the federal judge appoint “independent counsel” to investigate and prosecute government officials suspected of wrongdoing, because independent counsel is an “inferior” officer subordinate to the US Attorney General.
- Court found them to be inferior officer b/c of the limitations and scope of the duties in which were under the Attorney General (a principal officer) and it was a temp position so the court held that it did not violate the appointment power of the constitution.
Removal Power
Although the Constitution is silent with respect to removal power, it is generally agreed that the President may remove any executive appointee (e.g. an ambassador or cabinet member) without cause.
-Standard: Pres may remove executive officials unless removal is limited by statute.
Removal Power, if Independence is required
-Congressional limitation on power of removal: The president must have cause, however, to remove executive officers having fixed terms and officers performing judicial or quasi-judicial functions.
-Good Cause required if:
==Independent from executive and
==Inferior officers (not principle officers)
-Congress has no power to summarily remove an executive officer. They cannot pass a statute which prohibits the president from completely removing someone.
-Federal judges cannot be removed by either Congress or the President during “good behavior”; formal impeachment proceedings would be required for removal.
