Article II of the Constitution defines pwrs of the President and the Executive Branch

A. Foreign Policy
1. a. Presidential power comes from 2 sources:
  1. i. An Act of Congress
  2. ii. Another provision in the Constitution
2. b. President can exercise legislative powers in the following circumstances:
  1. i. Recommend legislation
  2. ii. Veto legislation
  3. iii. If Congress delegates legislative power
3. c. President possesses inherent powers that are not enumerated (e.g. power to act in an emergency like wartime)
  1. i. President must be allowed some flexibility and he has Necessary and Proper Clause powers. If Congress had been silent in Youngstown it would have been alright
    1. 1. i.e. Dames v. Reagan (Iranian Hostage Crisis) – The court ruled that there can be implied delegation if Congress has not objected to the Executive’s exercise of legislative power. If Congress is silent, Congressional agreement will be implied or presumed.
4. d. Framework for determining when the President can act:
  1. i. Delegation of an articulable principle
    1. 1. Highest Degree of Presidential Authority: when the President acts pursuant to an express or implied authorization of Congress (Had Truman seized the mills pursuant to an act of Congress, the Court would give it greater latitude)
  2. ii. President has implied and inherent powers → There is no delegation or forbearance
    1. 1. Zone of Twilight: when the President acts in absence of either a Congressional grant or denial of authority, he can rely only upon his own inherent powers, but there is a zone of twilight where Congress may have concurrent authority
  3. iii. Enumerated powers in Article II
    1. 1. Lowest ebb of Presidential power: when the President acts in a way that contradicts the expressed or implied will of Congress. (Youngstown) Now he can only rely on his own constitutional powers minus any constitutional powers of Congress over the matter. This kind of Presidential power must be scrutinized because he has disturbed the separation of powers.
5. e. Treaties
  1. i. A treaty is an agreement between the US and another country, negotiated by the President and is ratified by the Senate
  2. ii. State laws that conflict with treaties are invalid
  3. iii. If there is a conflict between a treaty and a federal statute, the one adopted last in time controls
  4. iv. Treaties are invalid if they conflict with the Constitution
6. f. Executive Agreements
  1. i. An executive agreement is an agreement between the United States and a foreign country that is effected when signed by the President and the foreign nation
  2. ii. If titled an Executive Agreement then it requires no Senate approval
  3. iii. These may be used for any purpose
  4. iv. If there’s a conflict between an executive agreement and a state law, the executive agreement prevails, while if there is a conflict with an existing federal statute, then the executive agreement is invalidated
7. g. President has broad powers as Commander in Chief to use American troops in foreign countries
  1. i. Never has President’s use of troops in a foreign country been found to be unconstitutional
B. Domestic Affairs
1. a. The president does not have the constitutional power to change a bill of Congress after it has been passed. After he gets the bill he can either sign it or veto it, and that is it. (Clinton v. New York)
2. b. Bicameralism and Presentment
  1. i. Legislative acts that alter the rights, duties, and obligations of individuals outside the legislative branch require bicameralism and presentment to the president
  2. ii. Any legislative acts that affect only the internal workings does not require bicameralism and presentment
  3. iii. The bicameralism and presentment clauses apply only to Congress and act as a check on their power
3. c. Appointment
  1. i. Who may possess appointment power?
  2. ii. The President alone appoints ambassadors, federal judges and superior officers of the United States, and the Senate must confirm these nominations
  3. iii. Congress may vest the appointment of inferior officers in the President, in the heads of departments, or in the lower federal courts
    1. 1. An inferior officer is one who can be fired by an officer of the United States
  4. iv. Congress cannot give itself or its members the power to appoint executive officers
4. d. Morrison Test for determining Domestic Separation of Powers:
  1. i. Look at the text of the Constitution
    1. 1. Has one branch exercised power which the constitution has expressly given to another branch? (if the text resolves it then it is obviously constitutional)
  2. ii. Acting inappropriately (from the viewpoint of the branch seizing power)
  3. iii. Impermissible interference with one branch’s ability to do its job (from the viewpoint of the branch losing power)
5. e. Removal Power
  1. i. Unless removal is limited by a federal statute, the President may fire any Executive Branch official
  2. ii. Congress, by statute, may limit removal, but only if both of 2 requirements are met:
    1. 2. Statute cannot prohibit removal, but it may limit removal for where there’s good cause
    2. 1. Must be an office where independence from the President is desirable
      1. a. i.e. Congress cannot remove a member of the President’s cabinet, but it could remove a special prosecutor
Domestic Affairs
1. f. Presidential Immunity
  1. i. President has absolute immunity (he cannot be sued) to civil suits for money damages for anything done while carrying out the Presidency
  2. ii. President has no immunity for acts that allegedly occurred prior to taking office
  3. iii. The immunity from damages extends only to when he is acting in his official capacity, and within the scope of his duties
  4. iv. Executive privilege protects presidential papers and conversations, but such privilege must yield when there is an overriding need for the information
  5. v. Balancing test:
    1. 1. Balance the need for the information against the need for the privilege
      1. a. In Nixon, the need for the information was at its highest or else it might interfere with the judiciary branch
      2. b. If the information involved national security then the need for the privilege would be at its highest and there would be no disclosure
      3. c. A general claim for executive privilege will not outweigh the needs of the fair administration of criminal justice.

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Article II of the Constitution defines pwrs of the President and the Executive Branch

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