3. Executive Power (President)

Inherent Presidential Power

The President has the Express Powers of: Commander in chief of Army & Navy, Grant Pardons for federal offenses, make treatises with consent from Senate, Appointment Power, Removal Power

RULE: Without any constitutional or statutory authority, the president has implied powers but when can a president act without express powers?

Jackson’s Tripartite Test Youngstown v. Sawyer.

1. When the president acts pursuant to an express or implied authorization of Congress

   • President’s power is at maximum and the presumption of presidents use of power is that it’s constitutional.

2. When Congress has neither granted NOR denied presidential power

   • This creates a gray zone where the president & Congress have concurrent authority and it will depend on the facts of the situation.

3. When the President’s actions are in conflict with the expressed or implied will of Congress.

   • President’s power is at minimum, Congress says he cannot use his power, BUT president can make an argument that his powers override what Congress is saying.

President Power of Executive Privilege

Executive Privilege: The ability of the president to keep secret conversations with or memoranda to and from advisors (Not expressly stated in Constitution, thus inherent)

U.S. v. Nixon

• Nixon claimed that his defense against a court subpoena to turn over the tapes was an executive privilege but the court rejected that fact saying this was an internet power, NOT absolute.

Trump v. Vance:

• No citizen, not even the president is above the common duty to produce evidence when called upon a criminal proceeding. No immunity for the president from state criminal subpoenas.

How are Federal Laws Passed?

1. Bicameralism → Pass by both the House and the Senate

2. Presentment → The Bill is given to the President to sign (Becomes a Law) OR veto. If Vetoed, then the bill is given back to Congress, needing a 2/3 vote from both houses for it to become a law.

Legislative Veto → Allows Congress to invalidate an agency’s action without presenting it to the President to by authorization of just 1 house. UNCONSTITUTIONAL.

If Congress dislikes the action of administrative agency, It can always enact a law to overturn it, but that requires Bicameralism AND Presentment.

Authority of Congress to Increase Executive Power

1. Line-Item Veto: UNCONSTITUTIONAL

   • Power to the president where he can veto a part of a bill and affirm the other

   • Clinton v. City of NY: Line item veto is unconstitutional b/c the president is changing the law and law & creating a new one.

2. Non-Delegation Doctrine: Might be revived but unknown

   • Congress is the party that is supposed to make law and they may not delegate that legislative power to another branch to an administrative agency.

   • Administrative agencies are mostly created through Congress’s Commerce Clause and generally have legislative power since they possess the authority to promulgate rules that have the force of law.

3. Major Question Doctrine:

   • Unknown whether this is a constitutional requirement or a rule of statutory interpretation.

   • If an agency wants to do something that has a big impact, Congress must make it clear that they are giving them this kind of expansive power, and if it’s not clear, then it is not sufficient.

   • Under this, An agency can act on a major question of economic or political significance only if there is a clear direction from congress.

Checking President’s Administrative Power

1. Appointment Power

   • President can nominate and appoint ambassadors and other public ministers, judges of the court, and all other officers whose appointments are not otherwise provided

   • Principle Officers: Selected by the President with the advice and consent of the Senate.

   • Inferior Officers: Congress may allow them to be appointed by the president alone, by the courts of law or by the head of the department.

   • Morrison v. Olson: An independent counsel is not a principal officer, he is inferior so the president can appoint him alone.

2. Removal Power

   • No provision in the Constitution concerning removal by the President but he may remove executive officials unless removal is limited by statute.

   • Removals by the president that are Constitutional:

     • Multimember expert agencies that do not wield substantial executive power;

     • Inferior officers with limited duties and no policymaking authority.

Lawsuits Against the President:

1. Criminal Trials:

   • Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information.

   • Trump v. Vance:

     • For a presidents to be prosecuted, he must first be impeached by the house and then conviction by 2/3 of the Senate.

     • Rules regarding president’s acts:

       1. President is absolutely immune from criminal prosecution if his actions were within his exclusive sphere of constitutional authority (Pardon Power)

       2. Unofficial acts = NO immunity

       3. For the president’s remaining official actions, it is undecided whether that immunity must be absolute or presumptive.

2. Civil Proceedings:

   • Court is required to consider the issue of separation of powers without first requiring the executive branch to assert executive privilege.

   • Nixon v. Fitzgerald:

     • President has absolute immunity from Civil Suits for all official actions while in office.

     • Will not place president above the law because there’s still constitutional remedies such as impeachment.

   • Clinton v. Jones:

     • President has NO immunity for acts that occurred BEFORE the president takes office.

3. Impeachment:

   1. House of Representative → Sole power to impeach by approving articles of impeachment

   2. The Senate → Sole power to TRY impeachment by convicting the president with a 2/3 member present

Separation of Powers and Foreign Policy

1. Treaties:

   • President has the power to make treaties but must be ratified by the Senate with a 2/3 vote.

   • If the document is labeled “Treaty” = Senate approval required.

2. Executive Agreements: Constitutional

   • Agreement between the U.S. and a foreign country that is effective when signed by the president and the head of the other government

   • Executive agreements can be used for any purpose and anything that can be done by a treaty can be done by executive agreement.

   • If the document is labeled “Executive Agreement” = No Senate ratification required.

3. War Powers:

   • Congress = Power to Declare ware and raise & support the military

   • President = Commander in Chief

   • Adopted “War Power Resolution” in 1973 in responded to Vietnam War:

     • President has to consult with Congress BEFORE introducing U.S. armed forces into hostilities.

     • Absent a declaration of war by Congress, the President shall submit a report to congressional leadership within 48 hours of introducing U.S. troops into hostilities explaining why the president’s actions are necessary and the authority for the actions.

     • Within 60 days of that report, the President has to terminate the troops UNLESS Congress declared war, extended the 60-day deadline or is physically unable as a result of an armed attack.

   • It is POSSIBLE that every challenge to a president’s actions as violating the War Power Resolution will be dismissed on justiciability on justiciability grounds.

Presidential Power and the War on Terroism

Civil liberties are threatened during wartime. Courts lack the expertise and capacity to determine the necessity of these rights during wartime.