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

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 6

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 7

Independent CounselIndependent Counsel

Created in aftermath of Watergate.

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 8

Executive PrivilegeExecutive 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

Nixon was forced to turn over tapes because Court said there was “an important contervailing interest.”

Does this apply to Vice-President?

Slide 9

Immunity: CriminalImmunity: 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.

Slide 10

Immunity: CivilImmunity: Civil

Civil Proceedings

Cannot be enjoined for conduct while in office.

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

Can be sued for conduct prior to taking office.

Slide 11

Executive PowerExecutive Power

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

- Art II, Cl 1, United States Constitution

The Debate

Slide 12

The Test(s)The Test(s)

Youngstown Sheet & Tube v. Sawyer

Slide 13

The Jackson ApproachThe Jackson Approach

Three zones of Presidential authority.

President has most power when he acts pursuant to express or implied authorization from Congress.

President's power is weaker when acts absent Congressional authority.

He must rely solely on his own independent powers.

President's power is weakest when he acts against the wishes of Congress

Slide 14

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 15

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 16

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 17

War PowersWar Powers

An invitation for a struggle:

Article I give Congress power to declare and fund military.

Article II makes President Commander-in-Chief and gives him power to use military to “defend” the country.

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

Slide 18

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 19

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 20

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.