What can the President do? Presidential Power Flashcards
(20 cards)
What are the President’s express constitutional powers?
Art II, §1: Executive Power vested in the President
Art II, §2: Commander in Chief, Pardons, Treaties, Appointments
Art II, §3: State of the Union, Recommend Legislation, Receive Ambassadors, Faithfully Execute Laws (Take Care Clause)
Art I, §7, cl. 2: Veto and Pocket Veto Powers
What is the Formalist approach to presidential power?
Strict interpretation: J. Black -Must find express power in Constitution or statute
3 Steps:
1) Identify Power at issue (What)
2)Identify officials exercising the power (Who)
3) Match to Constitution (Text)
What is the Functionalist (Pragmatic) approach to presidential power?
J. Jackson
Flexible: Focus on whether one branch encroaches on another
Less rigid categorization; encourages political creativity
What framework did Justice Jackson outline in Youngstown Sheet & Tube Co. v. Sawyer?
Category 1 (Max Power): Constitution/Congress expressly granted or authorizes President’s action
Category 2 (Zone of Twilight): Congress silent; President relies on inherent power
Category 3 (Lowest Power): President acts against Congress’s will - upheld only if Congress is disabled from acting when only the P can
Bonus:
“Life’s Gloss” (Frankfurter Concurrence): History matters in interpreting Presidential powers.
How much authority does the President have in foreign affairs?
Broad discretion compared to domestic affairs.
Category 1 Functionalist approach example
U.S. v. Curtiss - P had direct authority from Congress to ban the sale of fighter planes to Bolivia during the Chaco War
Category 2 Functionalist approach example
Dames & Moore v. Regan - Executive Agreement Power. P may relinquish claims of U.S. Citizens against foreign governments to resolve international disputes
Category 3 Functionalist approach example
Zivotofsky v. Kerry- P alone has the power to recognize foreign sovereigns. (here, Israel)
What are the President’s war powers?
1)Can repel attacks without Congress (Prize Cases)
2)Can authorize military trials for saboteurs (Ex parte Quirin)
3)Can detain enemy combatants (Boumediene v. Bush)
4) War Powers Resolution (1973): Requires P to consult Congress, but often ignored during emergencies.
What legislative powers does the President have?
Can veto entire acts of congress
Cannot line-item veto- all or nothing (Clinton v. New York)
How are principal and inferior officers appointed?
Principal Officers: President appoints, Senate confirms
Inferior Officers: Congress may delegate appointment to President, Courts, or Department Heads
How do you tell if someone is a Principal or Inferior officer?
Factors (from Lucia v. SEC):
Permanency, Discretion, Importance, Powers
(Morrison v. Olson → inferior officer if subject to removal, limited jurisdiction, limited duties)
Can Congress limit the President’s power to remove executive officials?
Cannot restrict removal of purely executive officials (Myers v. U.S.)
Can restrict removal of quasi-legislative/judicial officials (Humphrey’s Executor)
Can limit removal of inferior officers (Morrison v. Olson)
Cannot impose multiple layers of removal restrictions (Free Enterprise Fund v. PCAOB)
Must allow at-will removal for single-headed agencies like CFPB (Seila Law v. CFPB)
Is executive privilege absolute?
Exists, but is not absolute (U.S. v. Nixon)
Must balance privilege against other government interests.
what is privileged?
Immunity from civil suits for official acts (Nixon v. Fitzgerald)
what is not privileged?
Must comply with subpoenas (state/federal) (U.S. v. Burr, Trump v. Vance, Mazars LLP)
No extension to executive aides (Harlow v. Fitzgerald)
Can be sued for personal conduct pre-office (Clinton v. Jones)
What is the Major Questions Doctrine?
Presumes Congress wants to decide major issues itself, not agencies.
Agencies cannot assert major new powers without clear Congressional authority.
(West Virginia v. EPA → EPA lacked authority to require energy shifts under Clean Air Act)
What is the Take Care Clause?
President must faithfully execute the laws (Art II, §3).
What is an Executive Agreement?
International agreement made by the President without Senate approval (Dames & Moore).
What does “Life’s Gloss” mean?
Historical practices can shape constitutional interpretation (Frankfurter, Youngstown).
