ConLaw Presidential Power

presidential power analysis

When you see the President taking an action, ask yourself:

(1) Can the President do this unilaterally? (without the support of another branch)

(2) Can the President do this with Congress's approval?

(3) Can the President do this at all (even with congressional support)?

appointment power

The president appoints "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for . . .

"but Congress may vest the appointment of inferior officers as they think proper in the President alone, in the Courts of Law, or in the Heads of Departments."

appointment power and congressional appointees

Congressional appointees. Outside of its own committees, Congress may not appoint members of an agency or commission with administrative powers (e.g., conducting investigations, information gathering, and hearings, or promulgating rules, or issuing advisory opinions) or law enforcement powers (e.g., conducting litigation in the courts). Such persons are "officers of the United States" and must be appointed pursuant to Article II, Section 2. See Buckley v. Valeo (1976)

principal v inferior officers

President may only appoint principal officers, inferior officers are vested by other departments

Independent prosecutors are considered inferior officers and are appointed by courts of law

recess appointments (2 things to say)

The President can fill vacancies that happen when the Senate is in recess.

Recess appointments can occur during "substantial recesses" and a recess lasting less than 10 days is presumptively too short. Id.

removal power (3 things to say)

the president may remove executive officials unless removal is limited by statute

Congress can limit removal by statute if it is an office where independence from the president is desirable, and if the law does not prohibit removal but rather limits removal to instances where good cause is shown.

Congress may not vest executive functions (e.g., exercising discretion in interpreting and implementing the legislative mandate) in an officer who is removable only by Congress (by means other than impeachment) because that would give Congress control over execution of the laws and violate the constitutional separation of powers.

removal power and executive appointees

President has power to remove "purely executive" officials at will (e.g., cabinet officials), even though the appointment may have originally required the "advice and consent" of the Senate and even though Congress may have forbidden such removal because those officials are there to carry out the president's policies.

removal power and independent agencies (4)

Officers of independent administrative bodies may be removed by the president only for causes specified in the statute if the act so provides. Humphrey's Executor v. United States (1935).

Presidents may remove "inferior" officers, whose appointment is vested in an administrative body created by Congress, where the president finds good cause to do so.

Congress may not prescribe a double layer of protection from presidential removal whereby "inferior officers" may be removed only for cause by "officers" who may be removed by the president only for just cause. Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010).

Congress may not restrict removal of the head of an independent agency with a single top officer. Seila Law LLC v. Consumer Financial Protection Bureau (2020).

pardon power

Article II, Section 2 grants the president power "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

scope of pardon power (5)

The president's power to pardon is not subject to control by Congress. The president can issue a pardon for all crimes against the United States whether or not there has been a conviction.

It "may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment."

It includes the power to commute a sentence on conditions not authorized in the statute (as long as the conditions do not offend some other provision in the Constitution).

The power does not extend to civil liability.

It is unclear whether a president may pardon himself.

executive orders and executing laws

Presidential action may be upheld as an exercise of the President's power to execute the laws—on the theory that it is not unilateral action on the President's part, but action implicitly authorized by Congress.

What outlines the distribution of lawmaking power between the president and Congress?

Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer (1952)

What is the president's authority when acting with express or implied authorization from Congress?

His authority is at its maximum, including all that he possesses in his own right plus all that Congress can delegate.

What happens when the president acts in absence of congressional authority?

He can only rely on his own independent powers, and there is a zone of twilight where he and Congress may have concurrent authority.

What determines the constitutionality of presidential actions in the absence of congressional authority?

It depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

What is the president's power when taking measures incompatible with the expressed will of Congress?

His power is at its lowest ebb, and such actions will only be allowed if the law enacted by Congress is unconstitutional.

veto power

every act of Congress shall be approved by the president before it can take effect, or being disapproved, must be repassed by a two-thirds vote of each House.

vet power and no congressional veto (2)

The president's veto power applies to all legislative action unless explicitly excepted by the Constitution (e.g., Senate ratification of treaties or confirmation of presidential appointments).

Acts of Congress that authorize one or both Houses (or a congressional committee) to change decisions or rules delegated by Congress to executive departments or administrative agencies are invalid—such changes are new "legislative actions" and must therefore be presented to the President and subject to his veto. Immigration & Naturalization Service v. Chadha (1983)

veto power and line item veto

The president can not approve only some parts of a bill, its all or nothing Clinton v. City of New York (1998)

military powers (2)

Article II, Section 2 makes the president Commander-in-Chief of the military. This affords the president extensive legislative power in "theaters of war," e.g., to establish military governments in occupied territories. Such actions generally are not subject to judicial review.

Commitment of armed forces. In the event of insurrection or invasion, the president may deploy military forces against any enemy, foreign or domestic, without waiting for a congressional declaration of war.

inherent emergency power

Even without congressional authorization, the president probably has some "inherent" power to act in cases of great national emergency. Youngstown Sheet & Tube Co. v. Sawyer (1952)

impoundment

The president must spend appropriated funds when Congress has expressly mandated that they be spent.

The Court has avoided deciding whether the president has "inherent" power to impound funds authorized by Congress.

nondelegation doctrine actual doctrine and purpose (2)

Congress may not delegate its legislative powers to administrative agencies.

meant to force a politically accountable Congress to make policy choices rather than leave this task to unelected administrative officials.

limited application of nondelegation doctrine

only used twice to strike down laws. court has said the statute contains standard to guide the exercise of administrative discretion, but all delegations upheld

revival of nondelegation doctrine?

Gundy v. United States (2019), conservative justices in their opinions said it would take joint effort to revive doctrine to strike down delegations to agencies

major questions doctrine actual doctrine

When an agency claims big, impactful powers under a law, courts may hesitate to approve it—unless it's clear Congress meant to give that authority. Biden v. Nebraska (2023).

in such cases, the agency must point to congressional authorization

two-prong framework of major questions doctrine (2)

first, court determines whether the agency action is transformative expansion of its powers under a statute rarely used

second, court determines whether the regulation is of vast economic and political significance" and "extraordinary" enough to trigger the major questions doctrine. Id.

if both prongs are met, doctrine applies, and court should view the agency's assertion of authority with skepticism and agency must identify the congressional authorization

presidential prerogatives (2)

foreign policy and immigration

foreign policy presidential prerogatives (3)

with 2/3 congressional consent, president can make treaties with foreign countries

but president can enter executive agreements without consent of senate

in other areas, SCOTUS has recognized inherent presidential power to act

immigration and presidential prerogatives (2)

president has been given great discretion

court should review executive actions in this area under rational basis review as long as there's a reasonable explanation for it that doesn't rely on unconstitutional reasons.