FED EXEC POWER

Foreign Policy – What are treaties?

Treaties are agreements between the United States and a foreign country that are negotiated by the President and ratified by 2/3 of the Senate

Foreign Policy – Treaty Conflicts with State Law

Treaties prevail over conflicting state laws

Foreign Policy – Treaty Conflicts with Federal Statutes

If a treaty conflicts with a federal statute, the one adopted last in time controls

Foreign Policy – Treaty Conflicts with Constitution

If a treaty conflicts with the Constitution, the treaty is invalid

Foreign Policy – What is an executive agreement?

An agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation and can be used for any purpose

Foreign Policy – Executive Agreements Conflicts with State Law

Executive agreements prevail over conflicting state laws

Foreign Policy – Executive Agreement Conflicts with Federal Laws or Constitution

Executive agreements never prevail over conflicting federal laws or the Constitution

Foreign Policy – Is the Senate needed to make an executive agreement?

NO

Foreign Policy – Recognition Power

The president has the exclusive power to recognize foreign states and which is included in a foreign state

Can Congress pass a statute designating the capital of a foreign country?

NO

Foreign Policy – Immigration

The president has broad discretion in determining whether to admit individuals to the United States

Does the President have the power to declare war?

NO

Foreign Policy – What are the president’s powers in relation to war?

The president can use American troops in foreign countries without a congressional declaration of war to protect American lives and property

What is the result if there is a challenge to the president’s conduct as commander in chief?

It will be viewed as a nonjusticiable political question

What is the president’s appointment power?

The president appoints ambassadors, federal judges, and principal officers of the United States with the advice and approval of the Senate

Who can Congress vest appointment power to?

Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts

Can Congress give itself or its officers appointment power?

NO

When is the president NOT allowed to make a recess appointment?

During intrasession recesses that are less than 10 days

Removal Power

Unless removal is limited by statute, the President may fire ANY executive branch officer

When can Congress limit the removal of an executive officer?

(1) It must be an office where independence from the president is desirable, (2) Congress does not prohibit removal, but limits it to where there is good cause, and (3) It cannot be a single person who heads an agency and exercises substantial discretion

Can the president fire and remove a single person who head an agency?

YES

Can Congress empower a principal officer to remove and inferior officer?

YES

Impeachment and Removal – General Rule

The president, vice president, federal judges, and officers can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors

Does impeachment remove a person from office?

NO

What is required to be removed from office after impeachment?

Conviction by the Senate

What vote is required for impeachment?

Majority vote in the House

What vote is required for removal after impeachment?

2/3 vote in the Senate

Executive Civil Immunity

The president has absolute immunity from civil suits for money damages for any actions while in office, but not for actions that occurred prior to taking office

Executive Criminal Absolute Immunity

The president has absolute immunity, both while in office and after, from criminal prosecution for actions that are within the President’s exclusive constitutional authority

Executive Criminal Presumptive Immunity

A president is presumptively immune from criminal prosecution for any other actions taken pursuant to their official responsibilities

Is there any immunity for a president’s unofficial acts?

NO

Executive Privilege

The president has executive privilege over presidential papers and conversations and has the right to keep that information confidential, so long as the privilege yields to other important government interests

Presidential Limits on Protection from State and Congressional Subpoenas

The president has NO immunity to keep their financial records from being subpoenaed by a state grand jury, but if financial records are subpoenaed by a congressional committee, then the court must balance the competing interests

Pardon Power

The president has the power to pardon those accused or convicted of federal crimes, but NOT for state crimes or civil liability

Can Congress limit the president’s pardon power?

NO

Veto Power

If the president vetoes an act of Congress, the act may still become law if the veto is overridden by a 2/3 vote of each house

Take Care Clause

The president has the express power and duty to faithfully execute the laws

Youngstown #1 – What happens if the president acts with the express or implied authority of Congress?

The president’s authority is at its maximum and the president’s actions are likely valid

Youngstown #2 – What happens if the president acts where Congress is silent?

The action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks

Youngstown #3 – What happens if the president acts against the express will of Congress?

The president has little authority, and the action is likely invalid

Does the president have the power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent?

NO