Executive Power

Domestic Powers

a.      For the POTUS to exercise power, must find it:

                                                  i.      expressly in the Constitution OR

                                                ii.      in a federal statute OR

                                              iii.      Congressional resolution

b.     Youngstown Steel

                                                  i.      Formalist: the sources of power above. (restrictive)

                                                ii.      Functionalist: (concurrence) flexible and depends on the nature of the authority the POTUS is asserting.

Categories of Executive Power

a.      Cat I: greatest POTUS power – Congress has given power in direction the POTUS act.

                                                  i.      POTUS has all of Art 2 AND the implied/express Art 1 power.

                                                ii.      Defeated only by Constitutional prohibition.

b.     Cat 2: normal POTUS power – absence of Congressional grant/denial.

                                                  i.      POTUS relies on independent powers of Art 2 – but not Art II powers alone. These are powers that rely on Congress to at least some extent.

                                                ii.      “Zone of twilight” between overlapping authorities where it is unclear who has the authority.

                                              iii.      Congressional inaction or inertia in an area of national imperative MAY invite independent POTUS action. You get additional leeway on use of powers that the POTUS normally does that do have Congressional overlap (foreign affairs, military, etc).

                                              iv.      Most likely to implicate circumstances, imperatives of current events.

c.      Cat 3: least POTUS power – Congress has expressly or implied the OPPOSITE of POTUS action.

                                                  i.      POTUS has only the residual powers not held in by Congress. (explicitly given to POTUS alone – pardons, CiC,

                                                ii.      Could be indicated by current laws on books reserving/establishing explicit powers to congress.

                                              iii.      If domestic – Congress more likely to prevail, if foreign affairs – POTUS more likely to prevail.

                                              iv.      Historical precedent can inform on what the non articulated powers of Art I or II are – where that precedent shows it belongs to one or the other, that is persuasive. POTUS not only has power here he has exclusive power so Congressional opposition doesn’t matter. (Zivotofsky v. Kerry)

Executive Legislative Powers

a.      Congress can’t pass laws that bypass presentment and bicameralism (INS v Chadha).

b.     Limitation: No ability for POTUS to line-item veto (i.e. truncate or change the text of legislative acts, even if delegated by Congress). (Clinton v City of NY)

c.      Limitation: Where “major questions” are at play, Congress must do the thing/resolve the issue, not allow an agency/executive to do the thing without that.

1.      Appointment power

a.      Categorizing officers of the US

                                                  i.      Step one: Officer of the United States or employee? if officer:

                                                ii.      Step two: Principal or inferior officer?

1.      Principal officers (cabinet): MUST be

• POTUS nominated

• Senate confirmed

2.      Inferior Officers: THREE ways to appt:

• POTUS alone

• Courts of law

• Heads of Dept

b.     Powers of officers:

                                                  i.      Characteristics: Permanency, discretion, importance of function, powers, history and tradition of the office.

                                                ii.      Where the above are significant authority, requires an executive review/check to be Constitutional (Lucia)

                                              iii.      Powers and limitations on officers cannot intrude outside the congruent areas of the branch that they serve and must be within the bounds of that branch (i.e., need to be able to impeach, review, remove at some level, no complete waiver of oversight or review beyond the Constitutional provision) (Morrison)

c.      Inferior officer vs employee:

                                                  i.      Non-art III judges example: can conduct proceedings and order people to do things – close enough to being a real judge, they are officers – subject to inferior officer appointment (court, head of dept, or POTUS appointed).

• Inferior vs Principal: Principal has the above authority characteristics AND is able to discharge them without review of another (except perhaps the POTUS), an inferior officer requires a principal to effect the authorities of the office.

Removal Power of Executive Officers

a.      Congress cannot impose multi-layered for-cause restrictions on executive appointments bc these intrude on executive power. (Free Enterprise Fund).

b.     Myers still on books for high level - Congress can only hold to itself removal through impeachment for senior officers - otherwise authrity is with the POTUS.

c.      Humphreys: removal power does NOT extend to officials with legislative or judicial roles. (Ex: CAN fire postmaster, cannot fire FTC commissioner bc not exclusively executive, fulfills legislative role on behalf of delegated legislative power to agency by Congress)

d.     For-Cause restriction is NOT allowed to restrict:

• proper execution of executive powers

• the power of the president to remove officers where the role requires full confidence (Cabinet positions, for ex) (Morrison)

• Morrison: not a violation of Separation of Powers (intrusion on the removal powers of the Executive) to enact laws:

  • restricting the firing of judicial employees, such as an independent or special counsel or USA to the Attorney General

  • and then only for cause,

e.      POTUS must have removal power over a single-executive leadership position at an agency like the CFPB (Seila Law).

US v Nixon

a.      United States v. Nixon (1974)

                                                  i.      (1) The existence and scope of an executive privilege is justiciable (bc it is the court’s job to say what the law is AND no unaccountable exec in the Constitution).

                                                ii.      (2) An executive privilege exists

1.      (a) The validity of claim of privilege in confidential/state secret type information is presumptive

2.      (b) But privilege is not absolute - a generalized assertion of privilege is rebuttable

3.      (c) Must be balanced against other interests

a.      Who needs to know and why?

b.     Integrity of system of justice is the reason why.

Clinton v Jones

a.      no immunity for non-official acts and thus POTUS subject to civil damages suits arising before office and/or disconnected from purpose of immunity.

                                                  i.      Absolute immunity: POTUS is entitled to absolute immunity from damages liability predicated from his official acts only (Nixon v Fitzgerald). The sphere of action protected must be related closely to the immunity’s justifying purpose.

                                                ii.      ***Pre-presidential actions: no immunity bc see above.

                                              iii.      If precedent shows minimal impact from suits, it is presumed that such activity does not limit an officeholder.

                                              iv.      Court gets to decide whether the POTUS has acted within the law.

                                                v.      POTUS is subject to judicial process in appropriate circumstances (United States v Burr, Nixon)

a.      Trump v United States:

Presidential immunity from criminal prosecution

• Core official acts – absolute immunity;

• Other official acts – close to absolute immunity (presumptive immunity);

• Unofficial acts – no immunity.