3. Con Law: The Executive Power

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rubidoux
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3. Con Law: The Executive Power
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2012-04-11 17:22:21
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  1. VESTED IN PRESIDENT
    The entire executive power is vested in the president. Various executive functions may be and are delegated within the executive branch by the president or by congress.
  2. DOMESTIC POWERS:
    APPOINTMENT OF OFFICERS
    The president is empowered, with the advice and consent of the senate, to appoint all embassadors, other public ministers and consuls, judges of the USSC, and all other officers of the US, whose appointments are not herein otherwise provided for... but congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts, or in the heads of departments.

    A special prosecutor with the limited duties of investigating a narrow range of persons and subjects is an inferior officer. Therefore, under the appointment clause, congress is free to vest the power to appoint a special prosecutor in the judiciary.

    Congress may not appoint members of a body with administrative or enforcement powers; such persons are officers of the united states and must be appointed by the president with senatorial confirmation unless congress has vested their appointment in the president alone, in federal courts, or in heads of departments.
  3. DOMESTIC POWERS:
    REMOVAL OF OFFICERS
    The constition is silent except for ensuring tenure of all article III judges during good behavior.

    Under court decisions, the president can probably remove high level, purely executive officers at will, without any interference from congress. However, it appears that congress may provide statutory limitations on the president's power to remove all other executive appointees.

    Congress cannot give itself the power to remove an officer charged with the execution of laws except through impeachment. A congressional attempt through legislation to remove from gov't employment specifically named gov't employees is likely to be held invalid as a bill of attainder.

    Congress cannot give a gov't employee who is subject to removal from office by congress any powers that are truly executive in nature.
  4. PARDONS
    The president is empowered to grant repreives and pardons for offenses against the US, except in cases of impeachment. The pardon power cannot be limited by congress, and includes power to commute a sentence on any conditions the president chooses, as long as they are not independently unconstitutional.
  5. VETO POWER
    Congress may override veto by 2/3rds vote.

    • President has ten days to veto (excepting sundays), if he fails to act within that time:
    • -- the bill becomes law if congress is still in session; or
    • -- the bill is automatically vetoed if congress is not in session (pocket veto).

    The veto power allows a president only to approve or reject a bill in toto; he cannot cancel part and approve other parts.
  6. POWERS AS CHIEF EXECUTIVE:
    INTERNAL AFFAIRS
    Where the president acts with the express or implied authority of congress, his authority is at its maximum and his actions are likely valid.

    Where the president acts where congress is silent, his action will be upheld as long as the act does not take over the powers of another branch or prevent another branch from carrying out its tasks.

    Where the president acts against the express will of congress, he has little authority and his action is likely invalid.
  7. POWER AS CHIEF EXECUTIVE:
    EXTERNAL AFFAIRS -- WAR
    Although lacking the power to declare or initiate war, the president has extensive military powers.

    The president may act militarily under his power as commander in chief of the armed forces in actual hostilities against the US without a congressional declaration of war. But congress may limit the president under its power to enact a military appropriation every two years.

    May establish military gov'ts in occupoed territories, including military tribunals.
  8. POWER AS CHIEF EXECUTIVE:
    EXTERNAL AFFAIRS -- FOREIGN RELATIONS
    President has the power to appoint and receive ambassadors and make treaties (with the advice and consent of the senate), and to enter into executive agreements. His power is broad even as to foreign affairs that require congressional consent.
  9. POWER AS CHIEF EXECUTIVE:
    EXTERNAL AFFAIRS -- TREATY POWER
    The treaty power is granted to the president by and with the advice and consent of the senate, provided 2/3rds of the senators present concur.

    Treaties are the supreme law of the land. Any state action or law in conflict with a US treaty is invalid.

    If a treaty is not self-executing, it isn't treated as supreme law until congress effectuates it. The treaty itself can serve as an independent basis for congress's power to adopt the required legislations.

    Valid treaties are on a supremacy parity with acts of congress; a conflict between an act of congress and a treaty is resolved by order of adoption, the last in time prevails.

    Treaties are not co-equal with the constitution and cannot confer on congress authority to act in a manner inconsistent with any constitutional provision.
  10. POWER AS CHIEF EXECUTIVE:
    EXTERNAL AFFAIRS -- EXECUTIVE AGREEMENTS
    The power to enter into agreements with the heads of foreign countries has become institutionalized. They can probably be on any subject as long as they do not violate the constitution. They are similar to treaties except that they do not require senate approval.

    Conflicting federal statutes and treaties will prevail over executive agreements. Executive agreements prevail over conflicting state laws.
  11. POWER AS CHIEF EXECUTIVE:
    EXECUTIVE PRIVILEGE
    Not a constitutional power, but an inherent privilege is necessary to protect the confidentiality of presidential communications.

    Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such material as evidence in a criminal case to which they are relevant and othewise admissible. This decision must be made by the trial judge after hearing the evidence.

    Military, diplomatic, and national security secrets are given great deference by the courts.

    In criminal proceedings, presidential communiques will be available to the prosecution, where a need for such information is demonstrated.

    The executive branch decision to withhold information will be given more deference in a civil trial than in a criminal trial.
  12. POWER AS CHIEF EXECUTIVE:
    EXECUTIVE IMMUNITY
    The president has absolute immunity from civil damages based on any action taken within his official responsibilities. There is no immunity from private suits in federal courts based on conduct that allegedly occurred before taking office.

    Presidential aides share in this immunity only if they are exercising discretionary authority for the president in sensitive areas of national concern. Other aides are entitled only to a qualified immunity.
  13. IMPEACHMENT
    The president, vice president, and all civil officers of the US are subject to impeachment.

    The grounds for impeachment are treason, bribery, high crimes, and misdemeanors.

    A majority vote in the house is necessary to invoke the charges of impeachment.

    A 2/3rds vote in the senate is necessary to convict.

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