Con Law I - Executive Power

Syracuse University College of Law - Professor Breen Spring 2026

Art. II - Prez Powers

Sec.1, Cl. 1 - Vesting Clause

Sec. 2 - Prez Power - Commander-in-Chief

Sec. 3 - Prez Duties - Take Care Clause

The Separation of Powers

The text of the Constitution allocates the national power among the legislative, executive, and judicial branches, in a framework providing for separation of functions as well as interlocking checks on the accretion of power.

Youngstown - EO

2 Sources of Prez power for EO:

1. An Act of Congress

2. From the Constitution itself

Only Congress is vested w/ lawmaking; Prez is restricted to recommending/vetoing laws and ensuring the faithful execution of properly enacted law (in good times & bad)

Youngstown - 3-Part Typology of Prez Power

1. Max Powers = when Prez acts pursuant to Congressional authorization (express or implied)

2. Zone of Twilight = statutes silent on Prez action

3. Lowest Ebb = Prez acts contrary to express/implied will of Congress (Prez powers minus Congress power)

US v. Nixon

Endorsed presumptive privilege

1. Ct balances the importance of executive privileges (need for candor & confidentiality) w/ the fair administration of criminal justice

2. Privilege cannot rest on a generalized interest in confidentiality

Trump v. US - Structural Categories

1. Acts w/in conclusive & preclusive authority = absolute immunity

2. Acts w/in outer perimeter of official responsibility = presumptive immunity

   1. Cannot inquire into motives

   2. Not unofficial just b/c illegal

3. Unofficial acts = no immunity

INS v. Chadha

Legislative vetoes are unconstitutional

Congress may not reserve the right to review & reject executive actions w/o complying w/ the constitutional requirements of bicameralism & presentment

Foreign Affairs Clauses

1. Art. I, Sec. 8 - Congress power of the purse & other war provisions

2. Art. II, Sec. 2 - 2/3 of the Senate must consent to Prez treaties

3. Art. II, Sec. 2 - Prez is commander in chief & can make treaties

4. Art. II, Sec. 1 - Vesting Clause

US v. Curtiss-Wright

Prez’s power must be interpreted differently and more broadly regarding foreign affairs.

Zivotofsky

Prez has sole power to recognize federal sovereignty.