Slide 1

U.S. Constituional LawU.S. Constituional Law

Executive Power

Slide 2

Executive BranchExecutive Branch

Slide 3

Qualification to be President

Qualification to be President

Natural born citizen

What does this mean?

Distinguish natuarlized.

35 years-old

14 years a resident within United States

Slide 4

Election of PresidentElection of President

Not directly elected

Electoral College

Electoral votes per state = # of members of Congress (House and Senate) it has.

All but two states have winner take all.Electoral college casts votes at later date.

Most states bind their electoral college reps by law.

Four year terms.

Can only serve twice.

Slide 5

RemovalRemoval

Two step process:

Impreachment (majority vote of House)

Conviction (2/3 of Senate)

“Treason, Bribery, or other high Crimes and Misdemeanors”

What is a high crime and misdemeanor?

Slide 6

Presidential PowersPresidential Powers

Break down the list of powers in Article II

How many powers are there?

Is this an exclusive list?

2003: President George Bush on the deck of the USS Abraham Lincoln shortly before giving his “Mission Accomplished” speech.

Slide 7

Appointment PowerAppointment Power

President has power to appoint with advice and consent of Senate.

Includes ambassadors, judges, and “all other officers”

What is Advice and Consent?

Slide 8

Foreign AffairsForeign Affairs

The President “shall have the power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Article II, Sec. 2

When may exective agreements be used instead of treaties?

Slide 9

Treaty v. Executive Agreement

Treaty v. Executive Agreement

Treaty = an agreement between U.S. and foreign country that is negotiated by President and ratified by Senate.

Executive Agreement = agreement between U.S. and foreign country that is effective when signed by President.

Slide 10

Executive PowerExecutive Power

Are there limits to executive power?

“The executive Power shall be vested in a President of the United States of America.”

- Art II, Cl 1, United States Constitution

Slide 11

The Test(s)The Test(s)

Youngstown Sheet & Tube v. Sawyer

Slide 12

Youngstown Sheet & Tube

Youngstown Sheet & Tube

During the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America.

Question - Did the President have the constitutional authority to seize and operate the steel mills?

Slide 13

Enemy Combatants & Presidential Power

Enemy Combatants & Presidential Power

Congress authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" . . .

President issues order allowing him to detain “enemy combatants.”

Soon after two Americans were detained.

Slide 14

War PowersWar Powers

Look at the powers held by both Congress and the President in the Constitution.

Where might there be a conflict concerning when and who can send troops into foreign combat?

NOTE - Pursuant to the Political Question Doctrine, the Court would like not get involved in answering this question.

Slide 15

Declaration of WarDeclaration of War

What constitutes a war declaration?

United States President Franklin D. Roosevelt signs a declaration of war against Nazi Germany on December 11, 1941.

Slide 16

Executive OrdersExecutive Orders

No explicit constitutional authority.

vague authority of President to “take Care that the Laws be faithfully executed”.

Used by Presidents since 1789.

Can be struck down by Court.

Youngstown Sheet & Tube

Have used to send troops into war

Kosovo in 1999

Slide 17

Legislative PrerogativesLegislative

Prerogatives

Veto Power (Article I, sec 7, cl 2)

Once bill is passed: President can either sign it, let it lapse into law without signing, or object (veto)

2/3 of both House and Senate needed to override the veto.

Delegation of Legislative Power

Congress gives the Exective Branch regulatory power of certain areas.

Which means, in this given area, the Executive Branch creates and enforces the rules.

Slide 18

Can the President be Investigated?

Can the President be Investigated?

Independent Counsel - Created in aftermath of Watergate scandal.

Constitutionality of the office was upheld in Morrison v. Olson.

Generally, Attorney General has power to appoint special counsel.

If AG fails to do so after 90 days, judges on the DC Court of Appeals can appoint.

NOTE – this authorization lapsed in 1999.

Slide 19

U.S. v. NixonU.S. v. Nixon

President Nixon refused to hand over taped conversations he had in the Oval Office to a special prosecutor who was investigating whether Nixon violated the law.

Court held that while President's do have “executive privilege” it does not extend to criminal investigations.

Slide 20

Executive PrivilegeExecutive Privilege

Executive Privilege - Not found in Constitution

Court says Pres. has ability to keep secret conversations with or memoranda to or from advisors.

However this is not absolute – U.S. v. Nixon

Does this apply to Vice-President?

Slide 21

Can the President be Sued: Civil ImmunityCan the President be Sued: Civil Immunity

Cannot be enjoined for conduct while in office.

NOTE – but his officers can and commonly are.

Cannot be sued for money damages for conduct while in office.

Can be sued for conduct prior to taking office.

see Clinton v. Jones.

Slide 22

Can the President be Charged with a Crime?Can the President be

Charged with a Crime?

Immunity: Criminal

Criminal Prosecutions – no case has ever dealt with whether a sitting President can be charged.

Most scholars believe the answer is no, and removal is the only remedy.