Presidential Powers

Front 1

Is the President the only source of constitutional "executive power"?

Back 1

Yes, under Article II, 1. However, many executive responsibilities are delegated to others within the executive branch.

SIGNIFICANCE: The executive branch has exclusive law enforcement powers--that is, the executive carries out the law Congress makes. Congress could not, for instance, delegate the power to conduct litigation to a committee of its own.

NOTE: Unlike most congressional power, many executive powers are implied--so they needn't fall within an enumerated power found in the Constitution

NOTE: Most issues involving presidential power concern the separation of powers and are discussed in the topic under the cod SOP

Front 2

Mr. Terminator is the very popular Governor of the State of Caledonia. When his term of office as governor ends, he would like to begin a political campaign to become President of the U.S. Mr. Terminator was born in the foreign country of Osterland, to parents who were citizens of Osterland only. Is Mr. Terminator qualified to become President of the U.S.?

Back 2

No. According to Article II, 1: "No Person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President.

NOTE: Federal statutes recognize the citizenship of children of American citizens born outside the United States. 8 U.S.C. 1401

Front 3

What are the President's powers in the area of foreign affairs?

Back 3

To:

1. Recognize (and withdraw recognition of) foreign governments; and
2. Receive Ambassadors and other public ministers; and
3. Act on the nation's behalf in day-to-day dealings with foreign governments.

NOTE: These are exclusive powers. The President shares with Congress the power to determine foreign policy (although the President has a distinct advantage, in that he controls information and can respond quickly to developments abroad). Remember that the federal government enjoys exclusive control over goreign affairs; the states have none.

Front 4

What powers does the President enjoy as Commander in Chief of the armed forces?

Back 4

It's not entirely clear, but such powers include:

1. Committing armed forces to repel a sudden attack on the U.S. itself (or any internal insurrection), even before Congress declares war;
2. Legislative power in "theaters of war" (e.g. establishing military governments in occupied territories); and
3. Controlling the disposition (placement) of armed forces

NOTE: The President does not have the power to declare war, that power belongs to Congress (although, in his role as Commander in Chief of the armed forces, the President may conduct military activity in actual hostilities against the U.S. without such declaration under Article II, 2)

Front 5

During the Korean War, President Truman directed the Secretary of Commerce to seize and operate the nation's steel mills to avoid the disruptive effects of a strike by steel workers on the nation's war effort. Was the action justified by the President's Commander-in-Chief powers?

Back 5

No. According to Justice Black's opinion for the Court in the famous Steel Seizure case, the action was too far removed from the theater of war to be covered by the Commander-in-Chief powers. Youngstown Sheet & Tube Co. v. Sawyer

Front 6

Was President Truman's seizure of the steel mills authorized by the President's inherent executive authority to enforce the law?

Back 6

No. According to Justice Black's opinion for the Court, Congress had not passed legislation authorizing the President's conduct. Therefore the President was making law, not executing the law, and thus acted unconstitutionally.

Front 7

Justice Robert Jackson's well-known concurrence in the Steel Seizure case identified 3 categories of presidential authority. What are the 3 categories?

Back 7

According to Justice Jackson:

1. The President is at the height of his authority when he acts with the express or implicit authorization of Congress;
2. The President operates in a "zone of twilight" when he acts in absence of either a congressional grant or denial of power; and
3. The President's authority is "at its lowest ebb" when he act in contradiction of the express or implied will of Congress

Front 8

In response to the terrorist attacks of Sept. 11, 2001, President George W. Bush issued an executive order providing that non-American citizens who were suspected of aiding the war on terrorism would be tried by special military commissions. The president's tribunals offer less protection to defendants than the procedures established by a congressional statute call the Uniform Code of Military Justice. Hamdan, a citizen of Yemen was arrested in Afghanistan and charged with assisting Al Qaeda with planning the 9/11 attacks. Con Hamdan be tried for war crimes before on the President's Bush's military tribunals?

Back 8

No. Justice Steven's opinion for the Court in Hamdan v. Rumsfeld, concluded that Congress had not authorized the tribunals and that the President did not have independent authority to create them. According to Justice Kennedy's concurrence, because Congress had already passed legislation setting the scope of military tribunals, the President acted in opposition to existing law--i.e. in Category 3 of the Steel Seizure categories, where the President's authority is at its lowest ebb.

NOTE: Once Congress authorizes military commissions, the President acts within his powers to enforce them, as long as they do not violate other constitutional provisions.

Front 9

In response to the 2nd World War, Congress passed the Non-Detention Act, which states that "no citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress." In response to the terrorist attacks of Sept. 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF). Hamdi, an American Citizen, was captured in Afghanistan and detained by the executive branch as an "enemy combatant." Does the President have the authority to detain Hamdi?

Back 9

Yes. A plurality of the Court in Hamdi v. Rumsfeld, ruled that the AUMF provided congressional authorization for the President's detention of Hamdi, and that the President had not violated the Non-Detention Act.

NOTE: Justice Thomas, the 5th vote to uphold the president's power, wrote that the President had inherent power as Commander in Chief to detain American citizens as enemy combatants.

NOTE: Justice Scalia, join by Justice Stevens, concluded that an American citizen cannot be held by the government without charges or trial unless Congress suspends the writ of habeas corpus.

NOTE: The Court also ruled that Hamdi must be accorded some form of due process

Front 10

The President wants to appoint Judge Torquemada to the U.S. Supreme Court. Torquemada presents himself as an everyday conservative, but an investigation into his judicial background shows that he's known as the "the Grand Inquisitor" for his brutal and imperious style. Can the President appoint Torquemada without the consent of the Senate?

Back 10

No. he may appoint judges (and other top-level federal officers, like cabinet members) only on the advice and consent (majority vote) of the Senate. Article II, 2

Front 11

What are the 2 sources of executive privilege?

Back 11

1. The doctrine of separation of powers; and
2. The inherent need to protect the confidentiality of executive communications.

NOTE: Executive privilege is not a constitutional power.

SCOPE: Executive privilege definitely encompasses military, diplomatic, and national security secrets--any other executive communications enjoy only a presumption of privilege. U.S. v. Nixon

NOTE: Since U.S. v. Nixon, Courts have approved subpoenas of both current and former Presidents; Presidents have also voluntarily appeared in civil or criminal litigation or before congressional committees.

Front 12

The President receives a subpoena to produce certain evidence needed by the prosecution in an upcoming criminal trial. The evidence consists of notes taken by the President during meeting with the advisers, concerning various issues of domestic politics. It's to be used by the prosecution in a prosecution of one of those advisers for violating citizens' rights under color of law. Can the President successfully claim that the doctrine of executive privilege prevents him from being compelled to disclose this information?

Back 12

No. Presidents do indeed possess an executive privilege--that is, a right to maintain the confidentiality of communications to which they become a party during their performance of their official duties. However, this privilege is "qualified," not absolute. It must yield to the need to develop all the facts needed for a criminal trial. U.S. v. Nixon That is the situation here, so the President must comply with the subpoena.

NOTE: If the communications involved military, diplomatic or national security secrets, then the executive privilege might be absolute, and outweigh law enforcement or judicial needs. U.S. v. Nixon, but that is not the case here

Front 13

Does the President enjoy absolute immunity from civil damages in carrying out his official duties?

Back 13

Yes. The President has absolute immunity from civil liability for his official acts. This extends to the "outer perimeter" of his authority under the Constitution. Nixon v. Fitzgerald

NOTE: But the President does not have immunity--even "qualified" immunity--for acts that are completely unrelated to the carrying out of his job. Clinton v. Jones (no immunity for acts taken before the President took office, such as the sexual harassment claimed here)

NOTE: Presidential aides generally have only a qualified immunity, such that they can be subject to civil damages if their actions violate statutory or constitutional rights, which are clearly established, and of which a reasonable person would know. Mitchell v. Forsyth

Front 14

The United States is attacked by a large group of radical terrorists from Upper Volta. President Firefly immediately declares war on Upper Volta. Is this action constitutionally valid?

Back 14

No. The President has no power to declare war; Congress must do so. (However, in his role as Commander in Chief of the armed forces, the President may conduct military activity in actual hostilities against the U.S. without such a declaration under Article II, 2)

Front 15

Relations have been strained between the U.S. and the country of Iguana ever since a former U.S. President insulted Iguanians by appointing a former child movie star Ambassador to Iguana. Iguana has, for some time, severely restricted the emigration of Iguanians to the U.S. To ease the tension, the President, with the advice and consent of the Senate, enters into a treaty with Iguana, permitting the citizens of each country unrestricted travel between the 2. This cause a mass exodus from Iguana to the U.S. In response, Iguana clamps down and forbids an Iguanian family from emigrating to the U.S. The President terminated the treaty because of this breach, without consulting the Senate. Is the termination valid?

Back 15

Yes. Although treaties may only be created with the advice and consent of the Senate, the President may, himself, continue or terminate a treaty without the Senate's consent. In fact, the President's termination of a treaty would be considered a nojusticiable political question, thus removing any judicial roadblocks from a President's power to nullify treaties. Goldwater v. Carter

Front 16

During a complex series of diplomatic negotiations with the Freedonians, the President enters into an Executive Agreement settling claims of U.S. citizens against the government of Freedonia. What else must be done to create and enforceable document.

Back 16

Nothing, because an Executive Agreement covering routine matters of foreign policy is the sole responsibility of the President, and does not require the consent of the Senate. However, such agreements are supreme only over state law; valid federal statutes passed subsequently can override them. The scope of the power to form Executive Agreements covers at least the fact here under Dames & Moore v. Regan, and the President's power to form executive agreements seems clear as long as he is not violating another constitutional provisions or a federal statute.

Front 17

Meddler, a foreign national from the country of Vecino, was arrested in the U.S. State of Taxes for the crimes of kidnapping, rape and murder. Taxes did not allow Meddler to contact the consul of Vecino after his arrest, as required by the Vienna Convention. After Meddler;s conviction, Vecino Convention in Meddler's case. After the Taxes state courts refused to reverse Meddler's conviction, U.S. President Arbusto drafted a memorandum ordering the Taxes courts to follow the International Tribunal's ruling. The State of Taxes refused. Does the president have the authority to order state courts to comply with the ruling of the International Tribunal?

Back 17

No. In Medellin v. Texas, the Court ruled that there was no treaty authorizing the president to act and that his executive power over foreign affairs did not give him sole authority to order a domestic court to reverse a conviction.

NOTE: The Court distinguished this situation from the president's authority to use executive agreements to settle civil claims between American citizens and foreign governments, which was upheld in Dames & Moore v. Regan, the case about President Carter's agreement to suspend claims of American creditors against Iran in exchange for the return of American hostages. In that opinion, the Court relied upon findings of congressional acquiescence and a history of executive practice that were not present in Medellin.

N.B. Federalism concerns would limit the president's capacity to order state courts to reconsider their convictions.

Front 18

Vice President Crook is indicted on tax evasion charges and resigns his office. What shall the President do? What constitutional provision applies?

Back 18

According to the 25th Amendment "the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress."