Presidential Powers

Terms:

Appointments Clause:
Article II, Section 2, clause 2 grants the President the power to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States [except those whose positions are not otherwise already provided for in the Constitution, and] Congress may by Law vest the Appointment of such inferior Officers…in the President alone.” In other words, the President is given broad appointing powers, and the powers not granted the President which remain with Congress may be vested in the President by Congressional act.

Treaty:
A compact made between two or more independent nations with a view to the public welfare…a contract between two nations. Black’s Law Dictionary, 6th Ed., West Publishing Co., 1990

Pocket veto:
The President’s power to veto a bill is time-limited. If Congress is not in session and the President does not actively veto the bill, but rather “pockets” it, after 10 days the bill is automatically vetoed. If, on the other hand, Congress is in session at the end of the ten days the President’s opportunity to veto has lapsed and the bill will become law.

Article II of the Constitution vests the powers of the executive branch in the President of the United States and details the powers of that office. In short, the executive branch is responsible for carrying into effect the laws as passed by the legislative branch and making sure that the laws are observed. The responsibilities are best split into two separate areas – Domestic Affairs and Foreign Policy.

DOMESTIC AFFAIRS

The Appointments Clause gives the executive branch and the President, not Congress, the power to appoint federal officials. The President has the power to appoint federal judges, ambassadors, and other "principal officers” of the United States, subject to Senate confirmation of such appointments. “Principal officers” here includes ambassadors and Members of the Cabinet. Although the Senate may opt not to confirm a Presidential appointment, Congress cannot limit or eliminate the President’s powers to make the appointments.

EXAMPLE: A member of the Supreme Court decides to step down to spend more time with her family in her old age. The empty slot is filled by the President, who appoints a new Justice. The appointment, however, is subject to Senate approval.

The power to appoint “inferior Officers” mentioned in Article II vests in the President only by Congressional approval. While Congress cannot itself exercise the power to make such appointments, Congress may vest this power in the judiciary or in Cabinet officials. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court clarified the line between principal officers and inferior officers, leaving essentially only Cabinet Members, federal judges, and ambassadors in the higher category. One important example of an “inferior Officer” position is that of Independent Counsel (a special prosecutor), which means that Congress may vest the power to appoint Independent Counsel in the judiciary, ensuring impartiality when issues arise concerning the executive branch.

EXAMPLE: Imagine that the President is accused of some wrongdoing. Congress may vest its power to appoint a special prosecutor in the federal courts, and the court may then appoint a special prosecutor to investigate the charges made against the President. Independence from the executive branch is crucial here to avoid any appearance of impropriety,

Along with the power to appoint comes the power to remove. Except where statutorily limited, the President may remove any executive branch officer. Congress cannot prevent removal entirely, but may limit removal by requiring a showing of good cause, provided the office from which the person is being fired is one where some measure of independence from the President is desirable. For example, the power of the President to remove Members of the Cabinet cannot be limited by Congress, because independence from the President is not desirable for those posts.

Morrison v. Olson, 487 U.S. 654 (1988) had an effect here too, and as a result even the power to remove purely executive officers may be limited by Congress so long as the restrictions imposed do not interfere with the Presidential performance of his Constitutional duties.

So if Congress may limit the President’s power to remove executive branch officers, may Congress itself remove people from these posts? Bowsher v. Synar, 478 U.S. 714 (1986) made clear that Congress may not do so.

In Bowsher, as a result of Congress’ attempt to reduce federal budget deficits, Congress gave the Comptroller General certain executive powers. Previous legislation already afforded Congress the power to remove the Comptroller for various reasons, but because Congress now bestowed on that position certain executive powers, the Court struck down the relevant provision of the act. So Bowsher tells us that Congress may not retain the right to remove for any cause any executive officer. This power remains with the executive branch and the President.

EXAMPLE: Congress decides that its power to declare war would be compromised if our Secretary of Defense does not meet certain standards of performance. Congress therefore passes a statute requiring the Secretary of Defense to appear before Congress each year and explain what he has done to improve our nation’s readiness for time of war. The statute provides that should the Secretary fail to make satisfactory improvements in any year, Congress may vote to remove the Secretary. Because the Secretary of Defense is a Cabinet posting under the President as Commander-in-Chief of the armed forces, the statute would be an unconstitutional exercise of power.

The President and other executive officers, however, may be removed from office by Congress through the power to impeach. Impeachment itself does not remove one from office. Instead, the House of Representatives votes to impeach. If the vote passes, a Senate trial is held, and only if the Senate convicts will the officer be removed from office. The House vote requires a simple majority to pass. The Senate conviction requires a 2/3 majority vote to pass.

While Congress may impeach and thereafter remove a President, the President does enjoy certain immunities from prosecution. Regarding civil suits seeking money damages for any Presidential acts while in office, the President is absolutely immune. In Clinton v. Jones, 117 S. Ct. 1636 (1997), it was made clear that the President enjoys absolutely no immunity for non-Presidential acts. Not only was the President subject to suit from Paula Jones, the Court refused to grant him even temporary immunity which would have allowed the President to put off his defense until his term of office was complete. The rationale behind the immunity – of ensuring that the President need not fear personal liability for acts of office - was entirely inapplicable according to the Court. Acts prior to taking the office of the Presidency are therefore also not included in the President’s shield from suit.

EXAMPLE: Suppose a President, years before taking office, is involved in a real estate deal in his home state. While in the office of the Presidency, facts come to light indicating that he may have committed fraudulent acts as part of the transaction. Although defending himself from the suit will take away from the time he can dedicate to his Office, he is neither immune from suit nor able to postpone adjudication.

The President does have an executive privilege covering Presidential papers and discussion, which affords further protection and the ability to refuse disclosure. Although this privilege will on occasion yield to other overriding governmental interest. In U.S. v. Nixon, 418 U.S. 683 (1974) we are provided with the only Supreme Court decision which draws boundaries for this privilege. There, it was found that whether the privilege applies or not is decided by the Court, not the President, and that because of the need to fully develop the facts relevant to a criminal trial, the privilege was outweighed in that case and disclosure could not be avoided.

Finally, Article II, Section 2, clause 1 grants the President “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This means that the President may pardon someone who is accused or convicted of a federal crime, but the President holds no such power regarding violation of state law or civil, as opposed to criminal, offenses.

EXAMPLE: Frank grew up with the man who is now President of the United States. Although they weren’t close growing up, Frank is sure the President will remember him and help him. After all, Frank helped him out of that sticky situation in high school, without which the President probably never would have been able to get his diploma. The help Frank needs involves a felony conviction for aggravated assault and rape in Kansas for which Frank feels he has served enough time. Somehow he manages to get the President on the phone to personally request a pardon. Needless to say the President is likely more than happy to tell Frank that he would help him if he could, but alas he doesn’t have the power to pardon anyone convicted of a state crime. “Call me when you get out,” he says, “we’ll do lunch.”

FOREIGN POLICY

In addition to bestowing upon the President certain powers regarding domestic affairs, Article II grants the President broad discretion over foreign policy. The two most important means of establishing foreign policy are treaties and executive agreements, and these operate differently with respect to state and federal laws and the Constitution.

Article II, Section 2, clause 2 grants the President “Power, by and with the Advice and Consent of the Senate, to make Treaties” pending approval when ratified by a 2/3 majority vote of the Senate.

Executive Agreements are not Constitutionally authorized, but are nonetheless agreed to be within the powers vested in the President. The most immediately apparent difference between a treaty and an Executive Agreement is that Executive Agreements do not require Senate approval, as that requirement stems from the Constitutional grant of power to enter into a Treaty. This is not as dangerous a sidestep around the Constitution as it may first appear. Crucial differences exist between the power and force of a treaty versus that of an Executive Agreement. These differences are examined in the chart at the end of this Section:

What is the advantage in the President seeking Senate approval and entering into a treaty rather than an Executive Agreement? Only a treaty can surmount any existing federal law, and it is precisely that power of the treaty which makes Senate approval necessary.

Note that in no case will state law interfere with the terms of either a treaty or an Executive Agreement. Were it otherwise, the states could effectively invalidate the President’s power to conduct foreign policy, as any agreements with foreign nations with which a state disagreed could be essentially nullified by the individual states.

EXAMPLE: The President enters into a treaty with China, which the Senate ratifies. The treaty provides, in part, that goods exported from China to the U.S. will be taxed at a particularly low import tax rate, in exchange for which goods shipped from the U.S. to China will enter China’s stream of commerce without having any import tax imposed. Suppose it would be possible for a number of states to now pass laws which would impose hefty import taxes on Chinese goods. The U.S. as a whole would not be living up to its end of the bargain, and the President’s ability to enter into agreements with foreign nations would be seriously compromised.

In addition to the power to enter into treaties and Executive Agreements, the President is named “Commander in Chief of the Army and Navy” by Article II. So while only Congress has the authority to formally declare war, controversy abounds regarding the President’s ability to commit armed forces abroad in the absence of such a Congressional declaration.

Some areas are clear, such as the authority for the President to commit our forces to defend against a sudden attack. See Prize Cases, 67 U.S. 635 (1863). It is also clear that Congress may delegate its powers to the President in advance, to be exercised at the President’s discretion, so long as the delegation is not overly broad. It is not clear, however, just what are the President’s powers to commit to a preemptive strike prior to an anticipated enemy attack or to commit troops to defend our allies against a sudden attack.

Finally, the President has the power to veto any act of Congress. An act vetoed by the President may still be passed into law only by a 2/3 majority vote of each house of Congress, whether the President vetoed the bill actively or by a pocket veto.


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