Conlaw Executive Powers

Front 1

Interpretive Limits

Back 1

Different views- Orginalists (Founder’s intent and the text itself)

Non Originalists (important that the constitution evolve by interpretations)

What are the issues that the framers intended to address

Front 2

Powers of Pres. Origin

Back 2

Either from the constitution or from an act of congress.

When the president acts with the express or implied authority of Congress, his authority is at its maximum

When Congress is silent, his action will be upheld as long as the act does not over take the powers of another branch of government

Front 3

State laws conflicting with treaties

Back 3

Invalid

Front 4

Treaties and federal law conflict

Back 4

"Which ever one is passed last. If treaty first, Federal Law controls
Treaties are invalid if they conflict with the constitution"

Front 5

Executive Agreements

Back 5

"An executive agreement is an agreement effective between US and a nation, and effective when signed by president and that other nation. No senate approval. Binding like a treaty

Can be used for any purpose (Supreme Court has never struck one down)

Prevail over conflicting state laws, but not over federal statutes or the constitution"

Front 6

War Powers

Back 6

Has broad powers to use troops in a foreign country. Never been struck down as unconstitutional

Front 7

Domestic Affairs

Back 7

No limit to delegate legislative power to executive agencies by Congress. Congress can give up its powers, regardless of broadness

Front 8

Appointment power

Back 8

"President appoints ambassadors, federal judges, and officers of the US. Senate confirms the nomination.

Congress can vest the appointment of inferior officers in the President, heads of departments, and the lower federal courts (Congress can choose who gets appointment power)

Congress cannot give the appointment power to itself or its officers."

Front 9

Inferior officers

Back 9

Can be removed by officers of the US. Atty Gen. Can remove US Attorneys for example.

Front 10

Removal Power

Back 10

"unless removal is limited by federal statute, president can fire any executive officer. (Nixon fired Special Prosecutor who was investigating him)

Two limits- Must be an office where independence of the executive is desirable (Cabinet... yes.... Special Officer... not any more)

Statute cannot prohibit removal, but can limit removal for good cause, even if there is a reason that independence would be needed"

Front 11

Immunity

Back 11

President has absolute immunity for money damages under civil suits for anything done while carrying out the office of the president. No immunity for acts that occurred prior to taking office (Clinton v. Jones)

Front 12

Executive privilege and info it has in

Back 12

Privilege must yield to overriding needs for the information. (Watergate)

Front 13

Veto power

Back 13

congress can override by 2/3 vote (Art. I §7)
President has 10 days (excepting Sunday) to Veto.
----- Bill becomes law if congress is in session
----- if it is not in session, the bill is pocket vetoed (10 Days)

Front 14

Nondelegation doctrine

Back 14

congress may not delegate its legislative power to administrative agencies

Front 15

Presidential discretionary limits

Back 15

“hot oil and presidential executive orders” (Panama, 1935). The president cannot determine and clarify the laws enacted by congress (in this case oil limits into states)... to do so is to legislate on his own by adding to a bill

Front 16

Does the congressional grant of authority to the EPA to determine air quality standards every 5 years and to alter them violate discretionary limits?

Back 16

no it does not... the reason being is that there is a scope of discretion that allows administrative bodies... there does not need to b e a determinate criterion... only what the organization determines is adequate within the scope of the legislation. (in this case the requisite amount to ensure public safety)

Front 17

Immigration and Naturalization Service (1983)

Back 17

The legislative veto (Power of congress to override administrative actions) is unconsitutional. The power was delegated to one house of congress and making decisions as to the legislation is a power shared by two houses.

Front 18

Primary and Inferior Officers

Back 18

(Olson, 1988)
There are two forms of appointments under article 2.. primary and inferior. The president, with the advice and CONSENT of the Senate, appoints the primary. The inferior can be appointed by POTUS, the primary, or the Judiciary
Determining an inferior, look who they can be fired by. If they have a ranking officer, they are likely inferior
The president does not hold the SOLE power to appoint officers
IF someone is a “Purely executive” official, he has the ability to fire them and congress CANNOT hobble the president in firing them.You must look at the functions of that person

Front 19

Congressional limitations on removal

Back 19

Can limit when indepenence from the President is desirable and the only limitation is that removal has to be based on good cause

Front 20

Recess appointments

Back 20

President can appoint to office druing a formal recess, lasts until the end of the senate term

Front 21

Ignoring bills by the president

Back 21

the president can choose to not enforce a bill, and congress’s counter is to withhold funds to counter for programs he likes

Front 22

What is a declaration of war

Back 22

there is no constitutional determination of what a declaration of war is

Front 23

Hamdi v Rumsfeld

Back 23

Enemy can only be held as long as there is an on going war (Following a gongressional authorization)

Front 24

Presidential Immunity

Back 24

Fitzgerald 1982

President has absolute immunity for civil damages for all official actions taken while in office
US Air force officer is fired by Nixon in retaliation for testifying with information to Congress that was embarrassing for the department of defense
The president should not have to worry about private lawsuits for efficiency reasons

Front 25

Clinton v Jones 1997

Back 25

The court is not required to grant immunity for all cases that act against the private actions of a president. When Jones sued Clinton for alleged acts prior to his election, the president was not being curtailed in his duties as president, nor was the judiciary acting as an executive