Unit 3: The Federal Executive Power

Source of Federal Executive Power

Article II establishes the executive branch of the federal government and vests the President with the executive power.

Express Presidential Power

Article II grants the President with express powers, including the role of Commander in Chief of the Army and Navy, the power to make treaties, nominate Supreme Court Justices and other federal officers, and the power to “take care that laws be faithfully executed.”

Inherent Executive Power

The President may act without constitutional or statutory authority with their inherent presidential power implied through interpretation of the Constitution.

Youngstown provides a framework to analyze the scope of presidential authority. A President’s exercise of inherent power will likely be upheld if the president acts with the express or implied authority of Congress. If Congress is silent, the act will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its task. However, when the president acts against the express will of Congress, the act will likely be found invalid.

“Unitary Executive Theory”

The theory that the President must have sole control over the executive branch of government.

Executive Privilege

Executive privilege is an inherent privilege that has been viewed by the courts as necessary to protect the confidentiality of presidential communications. Presidential documents and private conversations with advisors are presumptively privileged. The privilege will yield to the need of such materials as evidence in a criminal case. However, the court gives great deference when it relates to military, diplomatic, or sensitive national security secrets.

Courts are concerned that the President needs complete candor and objectivity with his advisors.

The Administrative State & Limitations to Executive Agencies

The administrative state refers to executive agencies and the idea that the governance of our everyday lives have increasingly relied on agencies since the 1930s. Agencies are tasked with administering and implementing statutes when Congress delegates authority to them. The “Nondelegation” doctrine and “Major Question” doctrine are limitations to executive agencies

The Nondelegation Doctrine

Under the Nondelegation doctrine,  Congressional delegation of authority to executive agencies will be upheld as long as Congress includes an “intelligible standard” for the agency to follow. Generally, an “intelligible” standard is a very lenient standard, where as long as there is some basis for and limit to delegation to an administration agency, a grant of congressional power does not violate the Nondelegation Doctrine. No federal statute has been struck down on nondelegation grounds since 1935.

The “Major Question Doctrine”

Under the “Major Question Doctrine,” if Congress intends to delegate power over a major question to an administrative agency, the court requires a “CLEAR STATEMENT” reflecting Congress’s intent. Specifically, an executive branch agency may use a statute to take action with extraordinary economic and political significance, the agency must point to the language in the statute that clearly grants that authority.

Court takes a more skeptical view when party argues that Congress has delegated broad powers to adopt regulations having wide-sweeping economic and political significance, or “major questions”

Veto

Under the Article I Section 7, every bill must be approved by both houses of Congress (“bicameralism”) and then presented to the President for his signature. After the bill is presented to the President (“presentment”), the President can sign the bill, veto the bill, or do nothing. If the President does nothing, after ten days: (1) the bill becomes law if Congress is still in session; (2) The bill is automatically vetoed if Congress is not in session (a “pocket veto”). However, Congress may override a veto by a vote of 2/3 of each chamber.

Line-Item vetoes are unconstitutional, meaning that the president must sign or veto the entire bill, they cannot sign/veto part of a bill.

Legislative vetoes are unconstitutional. A legislative veto is a provision that allows the legislature to nullify or override an action or regulation made by the executive branch or an administration agency without having to pass a new law. It’s unconstitutional because Congress attempts to create law or control enforcement without the use of bicameralism and presentment.

Appointment

Under the Appointments Clause, the President has the power to appoint executive branch officers, along with justices and judges, with the advice and consent of the Senate. There are two recognized types of executive branch officers: (1) Principal Officers, who must be appointed by the President and confirmed by the Senate; and (2) inferior officers who can be appointed by others other than the President and do not need Senate confirmation.

Principal officers are members of the cabinet. Inferior officers are those whose work is directed and supervised at some level by others who were appointed by the President and confirmed by the Senate.

Removal

The President’s removal power is implied from the Constitution and allows the President to remove any executive officer. Congress cannot limit the removal power, but can insulate some officers by requiring a show of good cause.

There are two exceptions: (1) Humphrey’s Executor where Congress can insulate multimember agencies from removal by the president only for "good cause".” However, they cannot insulate a single-director agency from removal by the President (Selia); and (2) Congress could provide tenure protection to certain inferior officers with narrowly defined duties.  

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Checks on the Power of the Power of the President

The power of the president can be checked in several ways, including (1) through congressional investigation or subpoena; (2) impeachment; (3) civil lawsuits; (4) universal injunctions; and (5) criminal prosecution.

Congressional Investigation/Subpoena

The president is not completely immune from a congressional investigation/subpoena. A subpoena must advance a legitimate legislative purpose. To determine this, the court considers four factors: (1) whether Congress could get the information from another source; (2) whether the subpoena is no broader than reasonably necessary to support the legislative objective; (3) how detailed is the evidence congress offers to establish that subpoena furthers legislative purpose; and (4) the burdens imposed on the president by the subpoena.

Impeachment

A check on the President is that Congress can remove a president and other federal officers for treason, bribery, or other high crimes and misdemeanors. The house has the sole power to impeach with a simple majority and the Senate has the sole power to conduct impeachment trials and convict by a 2/3 majority.

Most legal questions that arise in connection with impeachment are nonjusticiable political questions that would be inappropriate for judicial review.

Civil Lawsuits

Presidents are immune from civil suits for actions taken within their official responsibilities as president, but have no immunity from suits in federal court based on conduct that allegedly occurred before taking office.

Criminal Prosecution

The president is immune for actions taken under the President’s “conclusive and preclusive” constitutional authority, and has presumptive immunity for other official actions. Presidents are not categorically immune from federal or state criminal subpoenas, however a subpoena will not be enforced if it is an attempt to influence or interfere with the performance of the president’s official duties.