American Constitutional Law LAW-210

1. American Constitutional LawLAW-210 Federal Executive Power

2. Unit Objectives At the completion of this unit, students should be able to: • Outline the various presidential powers and their sources. • Explain what executive orders and presidential proclamations are. • Distinguish express presidential powers from implied presidential powers. • Summarize the powers of the President as commander in chief. • Compare and contrast a treaty with an executive agreement.

3. Unit Objectives(Continued) • Describe how a presidential appointment works and explain the relevance of the term inferior officer. • Describe the types of offenses subject to presidential pardon and the effect of a pardon. • Explain the nature of executive privilege. • Explain what is meant by presidential immunity and describe the situations in which it exists. • Summarize the steps in the impeachment process.

4. Federal Executive Power • The Constitution vests executive power in one person, the President, who has the power to grant pardons, make treaties, appoint various federal officers, call special sessions of Congress, and veto legislation.

5. Executive Orders and Presidential Proclamations • Executive Order A law put out by the President or a governor that does not need to be passed by the legislature. Example: Executive Order 13269, Expedited Naturalization (2002) • Presidential Proclamation A type of formal government statement meant for immediate widespread announcement. Examples: • Proclamation 7606, Columbus Day (2002) • The Emancipation Proclamation (1863)

6. Express v. Inherent Powers • The President has enumerated powers in handling domestic and foreign matters and additional inherent powers in handling foreign matters. • Inherent powers The powers a government must have to govern, even if not explicitly stated in its governing documents. Examples: • The constitutional power of the federal government to conduct foreign affairs • The power of the federal courts to protect constitutional rights.

7. Express v. Inherent Powers(Continued) • Example – Foreign Affairs • The foreign affairs power is divided between the President and Congress but in practice the President has exercised the dominant role (e.g., United States v. Curtiss-Wright Export Corp.). • The Curtiss-Wright 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.

8. United States v. Curtiss-Wright Export Corp.299 U.S. 304 (1936) • Casenotes • Issue: • Unconstitutional delegation of legislative power by Congress to the President. • Decision: • Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically. • Thus, there was no constitutional violation.

9. The President as Commander in Chief • Under the Commander in Chief Clause (Article II section 2), the President is the commander in chief of the armed forces, and included in this position is the right to use military force to defend the country. • 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.

10. The President as Commander in Chief(Continued) Has the power to: • Use military force to defend the country against foreign attack. • Order a blockade of ports without a congressional declaration of war (The Prize Cases). • Issue executive orders during World War II regarding relocation of persons of Japanese ancestry. • Order military trials for enemy saboteurs arrested on U.S. soil (Ex parte Quirin).

11. Prize Cases67 U.S. 635 (1862) • Casenotes • Issue: • Presidential power to order the blockade of ports and seizure of vessels absent a declaration of war by Congress. • Decision: • A de facto state of civil war had existed since the original attack by Confederate forces. • The President was bound to respond even though no action had yet been taken by Congress.

12. The President as Commander in Chief(Continued) Does not have the power to: • Order the government takeover of the nation’s steel mills (Youngstown Sheet & Tube Co. v. Sawyer). • Order military trials for nonmilitary U.S. citizens(Ex parte Milligan). • Conduct warrantless searches of domestic organizations suspected of subversive activities (United States v. United States Dist. Court). • Order a newspaper not to publish sensitive material (New York Times Co. v. United States).

13. Ex parte Milligan71 U.S. 2 (1866) • Casenotes • Issue: • Presidential power to suspend habeas corpus and order military tribunals for non-military civilians. • Decision: • Trials of civilians by presidentially created military commissions are unconstitutional. • Martial law cannot exist where the civil courts are operating.

14. The War Powers Resolution • The War Powers Resolution of 1973 sought to regulate exercise of the President’s power by limiting his 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. • Some claim that the measure is unconstitutional in that it abdicates to the President Congress’ power to declare war.

15. Treaties and Executive Agreements • 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. • Treaty A formal agreement between countries on a major political subject. The Treaty Clause of the U.S. Constitution requires the approval of two-thirds of the Senate for any treaty made by the President. • Executive agreement A document, similar to a treaty, that is signed by the President, but does not require the approval of the Senate (as a treaty does).

16. Appointment 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, or the nature of his/her duties, jurisdiction and tenure (e.g., Morrison v. Olson).

17. Morrison v. Olson487 U.S. 654 (1988) • Casenotes • Issue: • Congressional power to delegate its duties under the Appointments Clause to the Executive Branch. • Decision: • The means of selecting the independent counsel under the Ethics in Government Act did not violate the Appointments Clause. • The Act was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch.

18. Power to Pardon • The Constitution empowers the President to “Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” • Pardon • A President’s or governor’s release of a person from punishment for a crime. • Included in the power to pardon are the powers to commute and to grant amnesty. • Commute • Changing a criminal punishment to one less severe. • Amnesty • A wiping out by the government of guilt for persons guilty of a crime; a general governmental forgiving; a general pardon.

19. Power to Pardon(Continued) • Process: • Petition filed with Office of Pardons. • Petition is reviewed by an attorney for the Office of Pardons and by the U.S. Attorney for the district where the individual was convicted. • Alternatively, parties can make direct application to the President. • Criteria: • Good conduct for at least five years after conviction and release from prison.

20. Executive Privilege • The President has a limited executive privilege not to disclose communications with advisors. • Executive privilege • The right of the President and subordinates to keep some information (primarily documents) from public disclosure. • The privilege is used most often for military and diplomatic secrets.

21. Executive Privilege(Continued) • The President can claim executive privilege with respect to conversations and papers but that claim will not necessarily prevail. • The Supreme Court has 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 (e.g., United States v. Nixon). • The Court suggested however that a claim based on national security or for Presidential papers in a civil case might be treated differently.

22. United States v. Nixon418 U.S. 683 (1974) • Casenotes • Issue: • Whether the President’s right to safeguard certain information, using “executive privilege” confidentiality power, is entirely immune from review. • Decision: • Neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. • there is a limited executive privilege in areas of military or diplomatic affairs, but otherwise there is a preference for "the fundamental demands of due process of law in the fair administration of justice.".

23. Presidential Immunity • The President is not immune from criminal prosecution, but he enjoys immunityfrom civil liability for official actions. • Immunity The freedom of national, state, and local officials from prosecution for, or arrest during, most official acts, and their freedom from most tort lawsuits resulting from their official duties. • The President has absolute immunity from liability for actions relating to his Presidential duties, but not regarding claims arising out of events which preceded his tenure in office (e.g., Clinton v. Jones).

24. Clinton v. Jones520 U.S. 681 (1997) • Casenotes • Issue: • Whether a serving President is entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office. • Decision: • The Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. . • While the independence of our government's branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. • This is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.

25. 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 (U.S. Const., Article II, section 4). • Impeachment The first step in the removal from public office of a high public official such as a governor, judge or President.

26. Impeachment(Continued) • Procedure: • The House of Representatives makes an accusation by drawing up articles of impeachment, voting on them, and presenting them to the Senate. • A trial on the accusations then takes place in the Senate, presided over by the Chief Justice of the Supreme Court. • If convicted by a vote of two-thirds of the Senators, the President is then removed from office • 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.