Introduction [139-140]

                       

Article II basically addresses executive power.  It is supplemented by the veto power set out in Art. I sec. 7, and the 12^th, 20^th, 22^nd and 25^th Amendments to the Constitution.

 

Creation of the executive required some of the final compromises at the Constitutional Convention as the framers sought to create an energetic executive yet one subject to political and legal checks.

 

§6.01   Election [140-141]

 

Under the Twelfth Amendment, the President is chosen by electors chosen in each state for that purpose.  Each state has a number of electors equal to the number of senators and representatives it has in Congress.  States have broad discretion regarding how to choose electors.

 

In Bush v. Gore, 531 U.S. 98 (2000), the Court held that the Florida Supreme Court’s manual recount order  violated the Equal Protection Clause of the Constitution.  A five justice majority further held that insufficient time remained to allow the case to be remanded to the Florida high court to fashion an order which would allow the recount to proceed.

 

Although the electors were initially envisioned as wise men who would exercise independent judgment, the rise of political parties made them automatons chosen for their party loyalty.  States may not constitutionally compel electors to support their party’s candidate by statute although informal practices usually are sufficient to accomplish that result.

 

The 20^th Amendment made January 20 the date on which the Presidential and Vice-Presidential terms began and ended.

 

The 22^nd Amendment provides that no person could be elected more than two terms or serve more than ten years.

 

§6.02   Theories of Presidential Power [141-147]

 

            [1]  Historical Background

                       

Whereas some construe Presidential power broadly, others argue for a narrower definition of Presidential powers.

 

The debate turns to some extent on whether the vesting clause in Article II (“The executive power shall be vested in a President of the United States...”) is seen as conferring powers or as simply conferring a title on the person who possesses the powers set forth elsewhere in Article II.

 

Whereas Alexander Hamilton argued that the vesting clause conferred broad power James Madison viewed the clause as having the more modest purpose.  Whereas Theodore Roosevelt viewed the President as the “steward” of the American people, his successor, William Howard Taft, thought the President lacked any power not specifically granted by other clauses.

 

            [2]  Neagle Case [135 U.S. 1]

 

The Court held that the President’s duty to “take Care that the Laws be faithfully executed” empowered him to act to safeguard certain American rights or interests even absent statutory authority, here authorizing protection for a Supreme Court justice whose life had been threatened.

 

            [3]  Peace of the United States

 

In In re Debs, 158 U.S. 564 (1895), the Court upheld the President’s power to act to safeguard public peace.

 

            [4]  United States v. Midwest Oil Co. [236 U.S. 459]

 

The Court upheld the President’s power to withdraw public lands from use for oil exploration based upon longstanding practice.

 

            [5]  Steel Seizure Case [343 U.S. 579]

 

The Court struck down President Truman’s action in directing Secretary of Commerce Charles Sawyer to seize the nation’s steel mills to avert a threatened strike during the Korean War.

 

The six member majority produced six opinions (Justice Black’s opinion of the Court and five concurrences) and not all members of the majority shared the views of Justice Black. Black’s formalistic opinion reasoned in part that President Truman was engaged in lawmaking rather than law enforcing and accordingly had overstepped the bounds of his office. Some justices (e.g. Frankfurter and Jackson) drew significance from the fact that Congress had declined to give the President the authority President Truman exercised.

 

Three dissenters argued for a broad Presidential power to exercise emergency powers.  Some of the concurring justices agreed that the President had some inherent emergency power but did not think this case an appropriate circumstance for its use.

 

            [6]  Jackson’s Categories and Inherent Power Limitations

 

Justice Jackson’s concurring opinion was the most significant opinion in the case based, at least, on the historical attention it has received.

 

Justice Jackson separated three circumstances–when the President acts with congressional support, when he asks against congressional silence, and when he acts at odds with Congress.  The President’s powers are greatest in the first instance and weakest in the last.  Since Congress had declined to authorize the sort of action President Truman took, Justice Jackson viewed the steel seizure as falling in the last category and accordingly representing a weak exercise of Presidential power.

 

§6.03   President as Legislative Leader [147-150]

 

            [2]  Veto Power

                 

The veto power is the most significant legislative power the President possesses though not the only one. It derives from the requirement, stated in Article I, section 7, that every bill passed by the House and Senate must be presented to the President.

 

The President cannot veto only part of a bill.  Accordingly, the Court recently ruled the Line Item Veto Act unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998).

 

[3]  Legislative Veto

 

The Court previously held unconstitutional the legislative veto feature which Congress has incorporated in numerous pieces of legislation which allows one or both houses to delegate power to the executive branch while retaining some control over executive action.  Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983).

 

§6.04   Administrative Role [151-155]

 

            [1]  Appointing Power

 

Although Congress can create offices and define their qualifications it cannot appoint persons to hold offices of the United States.

 

The Constitution empowers the President to appoint federal officers with the Senate’s advice and consent.

 

Congress can vest the appointment of “inferior officers” in the President, the courts of law or heads of department. Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior, Edmond v. United States, 520 U.S. 651 (1997), or the nature of his/her duties, jurisdiction and tenure.  Morrison v. Olson, 487 U.S. 654 (1988).

 

The Constitution allows at least some interbranch appointments.  See e.g. Morrison, supra.

 

            [2]  Removal Power

 

The Constitution does not explicitly grant the President power to remove executive officers but the Court has held that power to be inherent in executive power, at least with respect to certain officers.  Myers v. United States, 272 U.S. 52 (1926).

 

More recently, the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws, Bowsher v. Synar, 478 U.S. 714 (1986), it can restrict the President’s power to remove that officer at least so long as the restriction does not compromise the President’s ability to fulfill the constitutional duties of the office. Morrison, supra.

 

§6.05   Law Enforcement [155-158]

 

The President has a constitutional duty to execute laws and the power to pardon.

 

§6.06   Foreign Affairs [159-163]

 

            [1]  Leading Role of President

                 

The foreign affairs power is divided between the President and Congress but in practice the President has exercised the dominant role.

 

            [2]  Curtiss-Wright [299 U.S. 304]

 

The case stands for the idea that the President can exercise broad power in foreign affairs and is often relied upon by Presidents to support claims to sweeping executive power in foreign policy. This interpretation rests largely on dicta in Justice Sutherland’s opinion.  In fact, Congress had authorized the action President Roosevelt had taken.

 

            [4]  Steel Seizure Case [343 U.S. 579]

 

The Steel Seizure case offers a different vision.  To the extent it relates to foreign affairs–it did after all involve a seizure of steel mills to support the Korean War–it envisions a consultative approach.

 

            [5]  Executive Agreements

 

The President’s power to receive and dispatch ambassadors implicitly suggests a power to recognize foreign governments.  This has been used to justify the idea that the President rightly speaks for the United States in foreign policy.

 

Executive agreements with other countries have largely replaced treaties as the method of entering into agreements with other countries. With or without legislative sanction, they are binding international agreements.

 

They may have domestic impact, too as was shown in Dames & Moore v. Regan, 453 U.S. 464 (1981), which upheld the executive agreements resolving the Iran hostage situation which suspended American claims pending in American courts and required that they be presented to an Iran-United States Claims Tribunal.

 

Executive agreements override inconsistent state law.  See e.g. United States v. Belmont, 301 U.S. 324 (1937).

 

§6.07   Commander in Chief [163-168]

 

            [1]  Constitutional Duty of President

                       

The Commander in Chief Clause (Art. II section 2) provides the basis for the President’s power to commit troops to battle.  The President’s power is clearest when the President acts to repel attack but Presidents have made more sweeping claims under it to dispatch military force.

 

            [2] War Powers Resolution

 

The War Powers Resolution sought to regulate exercise of that power by limiting the President’s ability to commit troops to battle for more than 60 (or in some cases, 90) days without congressional authorization and by introducing some features designed to promote accountability.  But others claim that the measure was unconstitutional in abdicating to the President Congress’ power to declare war.

 

§6.08   Presidential Accountability [168-172]

 

            [1]  The President as Defendant

 

Although some cases involving Presidential power named Presidential surrogates as defendants (e.g.  Marbury v. Madison) the President can be sued as a defendant.  United States v. Nixon, 418 U.S. 683 (1974).

 

            [2]  Executive Privileges and Immunities

 

The President can claim executive privilege with respect to conversations and papers but that claim will not necessarily prevail.  In United States v. Nixon, the Court held that the President’s generalized claim to the confidentiality of his papers will not prevail over the needs of the criminal justice system for evidence.  The Court suggested that a claim based on national security or for Presidential papers in a civil case might be treated differently.

 

The President has absolute immunity from liability for actions relating to his Presidential duties, Nixon v. Fitzgerald, 457 U.S. 731 (1982), but not regarding claims arising out of events which preceded his tenure in office.  Clinton v. Jones, 520 U.S. 681 (1997).

 

            [3]  Impeachment

 

The President, as well as the Vice President and other civil officers of the United States can be impeached and removed for treason, bribery and other high crimes and misdemeanors.  See U.S. Const., Art II, section 4.

 

Andrew Johnson and William Clinton were the only Presidents to be impeached but neither was removed from office.  Richard M. Nixon would have been impeached and removed but resigned to avoid those results.

 

§6.09   Succession and Disability [172-173]

 

The Twenty-fifth Amendment confirms the Tyler precedent whereby the Vice President becomes President upon the death, resignation or removal of the President, provides a procedure whereby the President can fill a Vice-Presidential vacancy with congressional confirmation, and provides procedures whereby the Vice President can act as President upon the disability of the President.

 

§6.10   Separation of Powers [173-176]

 

Separation of powers, like federalism, is a structural idea implicit in the architecture of the Constitution.

 

At times the Court has used a formalistic approach which envisions the functions of the federal government as being strictly divided between the three institutions of the federal government.  At other times, the Court has adopted a more functionalistic approach which allows adjustments so long as they do not involve a usurpation by one branch of the powers assigned to another, so long as no one branch aggrandizes its powers at the expense of another, and so long as the ability of a branch to discharge its functions is not compromised.