Executive Power and Privilege: Class Notes

Constitutional Law: Executive Power and Privilege

Types of Executive Power - Domestic

  • Youngstown Sheet & Tube Co. v. Sawyer (1952): This case is central to understanding the limits of executive power in the domestic context.
    • Majority Opinion (J. Black): Adhered to a formalist approach, emphasizing that the President's power must stem from an act of Congress or the Constitution.
    • Concurrence (J. Jackson): Introduced a nuanced framework of three tiers of power:
      1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.
      2. When the President acts in the absence of either a congressional grant or denial of authority, he enters a "zone of twilight" in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
      3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.
    • Dissent (J. Vinson): Advocated for a more pragmatic approach, arguing that the President should have broad power to act in emergencies.
  • President and Congress (P and C) Agree (Border Wall?): Raises the question of executive power when the President and Congress are aligned, potentially expanding executive authority.
  • "Zone of Twilight" (Dames & Moore v. Regan (1981)):
    • Inertia, Indifference, Quiescence: Describes situations where Congress has not acted, creating a zone of shared or uncertain power.
  • P and C Disagree (Youngstown): Highlights the conflict that arises when the President and Congress disagree, testing the limits of executive power.

Types of Executive Power – Foreign Affairs

  • Source: Derived from Article II of the Constitution and British history.
  • President's Role: The President is considered the "sole organ of the federal government in the field of international relations" (Curtiss-Wright Export Corp. v. United States (1936)). This grants broad power in foreign affairs.

Checks on Executive Power – Privilege

  • United States v. Nixon (1974): Addresses whether a president has absolute immunity from subpoenas seeking information related to their official duties.
  • Clinton v. Jones (1997): Examines whether a sitting president can be sued civilly for actions allegedly committed before taking office.

Presidential Immunity

  • Civil Liability
    • Official Acts: Absolute immunity from monetary damages (Nixon v. Fitzgerald (1982)).
    • Unofficial Acts and Acts When Not President: No immunity (Clinton v. Jones).
  • Criminal Liability (for conduct while president; motive is not relevant)
    • No prosecution while president: A sitting president cannot be criminally prosecuted.
    • Core Presidential Powers (not shared with Congress): Absolute immunity.
    • Official Acts: Presumption of immunity, unless there are "dangers of intrusion on authority and functions of Executive Branch."
    • Unofficial Acts: No immunity.