Executive Power - Rules

Constitutional source of exec power

Article II section 1 vests all executive power in a POTUS, requires him to take care that the Laws be faithfully executed

Who can recognize nations?

POTUS, foreign relations power via Reception Clause

Zivotofksy v. Kerry

Can POTUS restrict entry from certain countries?

yes, because power to determine whether entry is detrimental to national interest via broad foreign relations power

limites on POTUS war making power

War Powers Resolution

need Congressional approval to have troops somewhere more than 60 days, or congressional declarations of war

who has power to make treaties?

POTUS, article III

settling judicial claims via EO?

constitutional, if its necessary to solve a foreign relations dispute with another country AND congress acquiesces

Non-delegation doctrine

are POTUS domestic or foreign powers stronger?

foreign; gets special degree of discretion because he has “the power to speak or listen as the representative of a nation”

Youngstown framework: highest power

POTUS has implied or express congressional authorization

presumptively constitutional

Youngstown twilight zone

Congress is silent

judges depend on “the imperative of events and contemporary imponderables” (context)

lowest ebb of Youngstown framework power

POTUS acts against the will of congress

presumptively unconstitutional

limit of congressional power against POTUS

Congress cannot override executive action with a legislative veto

INS v Chadha

removal power against the POTUS?

high crimes and misdemeanors, treason, bribery

maj in house + 2/3 conviction by Senate

Article I

POTUs power against congressional appropriations?

no - impoundment act says POTUS can’t withhold funding lawfully appropriated by Congress

limit of Presidential power against congressional acts

POTUS cannot use a line-item veto, because that violates the Presentment Clause

Constitutional authority for appointments?

Article II, section 2

POTUS empowered “with the advice and consent of the Senate” to appoint all

• ambassadors

• other public ministers and consuls

• SCOTUs judges

  • all other officers of the US, whose appointments are not herein otherwise provided for

authority for inferior officer appointments?

Constitution - Article II

Congress may, by law, vest appointment of interior officers, as it thinks proper

• in POTUS alone

• in the courts of law

  • OR in the HEADS OF DEPTS

principal officers are

• not subject to removal by higher officers

• have broad powers (sufficient authority, buckley)

ALSO

• might have a continuing position est by law (Lucia v SEC)

• have final decision making power (Arhrex)

who can appoint principal officers?

only POTUS

• appointments clause

• need senate approval

• purpose = political accountability for exec branch decisions coming from POTUS

examples of principal officers

• mems of Fed election commission who make and enforce rules (executive function), Buckley

• ALJs, who have a continuing position est by law and exercise significant authority (Lucia v SEC, BUT not final decision making power)

• APJs who make final decisions on patents (Arthrex)

Inferior officer qualifications

• subject to removal by a higher officer

• limited powers - only legislative or judicial

examples of inferior officers

• special prosecutor removable by the AG (Morrison) and limited to investigating who don’t affect exec policy

• supervised and directed (Arthrex)

• special tax trial judge appt’d by IRS commissioner, because Appts Clause lets Congress delegate to Art. I courts to have their chief judge appt inferior officers (Freytag)

• members of task force appointed by agency secretary whose decisions can be overridden (Kennedy)

Who can appoint an inferior officer?

Congress, judiciary, other officers (ex - HHS Sec’y in Braidwood)

Is a tax court an agency?

maybe

Scalia dissent in Freytag = congressional agencies whose officers have to be appt’d by agency head (CJ)

definition of an exec branch dept

a high level exec branch office accountable to the POTUS and the public

could be an article I court? Scalia dissent, Freytag

constitutional authority for POTUS power to remove officers

N/A

except for ensuring tenure of Art III judges during good behavior

Who has power to remove high level, purely exec officers at will?

POTUS

don’t need congressional approval

examples of at-will removable 100% exec officers?

cabinet members

postmaster general (Myers)

why can’t congress restrict POTUS’ power to remove 100% exec officials?

Vesting clause and take care clause

Can Congress restrict POTUS from removing a principal officer, who himself can’t remove an inferior ?

NO! Free enterprise fund v. PCOAB

would interfere with duty to ensure laws are faithfully executed

Can Congress place a for-cause removal requirement on a principal officer who is the head of an agency?

NO! Selia Law - separation of powers issue

selia law: distinguish from humprehy’s

said that text of Constitution, first 1789 debate in officers, Myers, and PCOAB all establish that “the POTUS’ removal power is the rule, not the exception”

narrow reading of Humphrey’s as exceptions distinguishable

Can congress add removal protections to inferior officers?

yes, because POTUS need to control them is not central to the function of the executive branch

Myers and Humphrey’s

distinguish Myers and Humphreys

Myers doesn’t govern the removal of an officer who exercises no part of the exec power vested in the POTUS by the Constitution

Can congress limit removal for quasi independent tribunals?

yes, not executive function (judicial)

What type of job does the POTUS’ at-will removal power not work on?

purely legislative or judicial roles. If appointed officials do duties independent of POTUS, can only be removed with the advice, consent of the senate

Humphrey’s executor (*could be overturned)

rule for limits on POTUS removability of officers

1. congress can create protections for inferior officers who have limited duties and no administrative or policymaking authority

2. congress can implement for-cause removal protection for members of multimember boards heading agencies

3. *should be limited to agencies without substantial exec power

Selia Law v. CFPB

why can’t congress remove executive officers?

only can do that through impeachment, because of the separation of powers. can’t share functions between legislative and executive branches

Presidential confidentiality/privilege

Presidential documents and convos are presumptively privileged.

limit on presidential privilege/confidentiality

must yield to a need to use that stuff as evidence in a criminal case if relevant (and otherwise admissible) — as long as no national security or secrets on the line

US v. Nixon

When is POTUS absolutely immune from criminal liability?

Acts within the core constitutional powers or exclusive constitutional authority

When is POTUS presumptively immune from criminal liability?

official responsibilities or acts, while in office

still immune when out of office

When is POTUS not immune from criminal liability at all?

unofficial acts

trump v US

When does POTUS have absolute civil immunity?

for damages caused by actions taken in official capacity

• Nixon v. Fitzgerald - acts in the outer perimeter of his official responsibility

Why is civil immunity okay for pOTUS?

there are other checks on POTUS like impeachment and relection

When does POTUS not have civil immunity?

if the thing happened before ascension to the eagle throne

why doesn’t POTUS have civil immunity for stuff before?

doesn’t relate to helping POTUS perform full range of duties

where does article I vest legislative power

just congress

non-delegation doctrine

There must be an intelligible principle from congress, ins statute, telling the agency what to do, for delegation of authority

MQD

Clear statement rule saying that when an agency claims power to make decisions of vast economic or political significance, court needs to see clear congressional authorization.

Test for MQs (Biden)

enormous political or economic significance

alters balance of power between branches

goes far beyond agency traditional domain/practice

no clear congressional authorization