Chapter 3 The Federal Executive Power

Examines 5 topics: 1. Inherent presidential power 2. The Authority of Con ress to Increase Executi!e "ower #. The Constitutional "ro$lems of the Administrati!e %tate &. %eparation of "owers and 'orei n "olicy 5. Chec(s on the "resident I. Inherent Presidential Power Art. II) %ec. 1 *+The executi!e "ower shall $e !ested in a "resident of the ,%A.+ Then it enumerates specific powers of the president. Ar ument o!er whether this lan ua e was intended to grant the president inherent powers not expressly enumerated in Art. II. When may Pres. act when hes not authorized by Const. or state? o Called inherent power of the president o As if Pres. is acting within scope of his power and if hes !iolating any other section of the Constitution 5 roles Youngstown Sheet and Tube Co. v. Sawyer "secretary of commerce# $ Issue: no express power of what president did! 1-52) The ,nited %teelwor(ers ,nion announced a planned nationwide stri(e $ecause of a la$or.mana ement dispute. /efore the stri(e $e an) "res. 0arry Truman issued Executi!e 1rder 12#&2 which directed the %ecretary of Commerce to sei3e the steel mills and (eep them runnin 4under no statute5. The president) as commander in chief) rationali3ed his order claimin that if steel wasn6t produced) then it would endan er the national defense and the war in 7orea since steel was used to ma(e all weapons. o Article II Section !% &he President shall be Commander in Chief of the Army and 'a!y of the (nited )tates* and of the +ilitia of the se!eral )tates* when called into the actual )er!ice of the (nited )tates The order was reported to Con ress) $ut Con ress too( no action. The steel companies sued. 0eld: %ei3ure of steel mills is unconstitutional $y 8 to # mar in $ecause president cannot do this as commander.in.chief and pres. is 91T a lawma(er for Con ress Pres. can seize pri!ate property when theres a war* but no declaration of war* so this is the I))(,)hould it issue an in.unction pre!enting the president of the u.s. from seizing pri!ate property?

/ theories 0. &heory strict construction of the constitution. 1. exeuti Four different approaches can be identified in the 7 opinions written: 1. I!!IC"There is no inherent presidential power: the president may act only if there is express constitutional or statutory authority 4"res. may only issue order if it stems from either an act of Con ress or from the Constitution itself5. ;<ritten $y =ustice /lac( as the ma>ority opinion for the Court. ;#rants the pres. onl$ the powers found in Const. 2. I!!IC" The president has inherent authorit$ unless the president interferes with the functionin% of another branch of %overn&ent or usurps the powers of another branch. 4=ustice ?ou las said the sei3ure was unconstitutional $ecause the pres. was forcin the expenditure of federal funds: therefore) the pres. was usurpin Con ress6s spendin powers5. ;'llows the courts to invalidate presidential actions that interfere with the other branches of %overn&ent. 3. (( I!!IC" The president &a$ exercise powers not &entioned in the Constitution so lon% as the president does not violate a statute or the Constitution. )*ustice *ac+son devl,d a 3 part test: President,s acts are valid when he acts pursuant to an express or i&plied authori-ation of Con%ress. .&axi&u& extent of power/ 0hen the President acts in absence of either a con%ressional %rant or denial of authorit$1 he can onl$ rel$ upon his own independent powers1 but there is a -one of twili%ht in which he and Con%ress &a$ have concurrent authorit$1 or in which its distribution is uncertain. )Issues such as executive privile%e1 i&pound&ent1 rescission of treaties1 executive a%ree&ents1 re&oval of executive officials fro& office1 etc.2 .concurrent authorit$ -one 3/ 0hen the Pres. ta+es &easures inco&patible with the expressed or i&plied will of Con%ress1 his power is at its lowest ebb because the president is disobe$in% a federal law1 such actions b$ the pres. will be allowed onl$ if the law enacted b$ Con%ress is constitutional. @lowest e$$ 3one #A (4ees it as Con%ress,s responsibilit$ to act to stop presidential infrin%e&ents. &. The president has inherent powers that may not $e restricted $y Con ress and may act unless the Constitution is !iolated. 4'ederal laws restrictin the pres.6s power are unconstitutional5 B 5 6'! authorit$ so lon% as the Constitution is not violated7 even if it defies Con%ress. )e.%.1 in 8war on terror19 acts can be done do&esticall$2. The president needs authority to sei3e property.

:Executive Privile%e refers to the a$ility of the "resident to (eep secret con!ersations with or memoranda to or from ad!isors: $ut the Constitution does 91T mention this authority) $ut 0A% $een reco ni3ed. @inherent power/ "residents claim that this is necessary to recei!e candid ad!ice as well as to protect national security.

This was considered in (.). !. 'ixon "1-C&5 B o =une 1C) 1-C2 B $ur lary at ?emocratic 9ational 0eadDuarters in the <ater ate $uildin in ?.C. and the $ur lars were connected to the campai n to re.elect "resident 9ixon 4and hi h.le!el <hite 0ouse officials were in!ol!ed in a co!er.up5. o "res. Aide B Alexander /utterfield B re!ealed a secret tapin system in the 1!al 1ffice and that presidential con!ersations were routinely recorded. o Tapes were su$poenaed) $ut 9ixon refused to turn them o!er. o E%aturday 9i ht Fassacre+ B 9ixon ordered the attorney eneral to fire Cox) the prosecutor of the case) the attorney eneral refused and resi ned. Then as(ed the G2 uy at =ustice ?ept. to do so) he refused and resi ned. Then as(ed the G# uy 4Ho$ert /or(5 to do so) and he fired Cox. o %e!eral of 9ixon6s associates were indicted on conspiracy and o$struction of >ustice char es) $ut not 9ixon. Another su$poena 4su$poena duces tecum5 was issued for the tapes 4for one of the criminal cases of one of his associates5. 9ixon6s motion to sDuash the su$poena on rounds of executi!e pri!ile e and separation of powers was denied. o Impeachment proceedin s $e an while the 'ixon case was pendin $efore the %upreme Court) which ruled unanimously that 9ixon has to comply with the su$poena and produce the tapes. o Au . 8) 1-C& B 9ixon made edited tapes pu$lic and showed the he clearly had o$structed >ustice $y orderin the '/I to 91T in!esti ate the <ater ate matter. o Three days later) Au . -) 1-C& B 9ixon $ecame the only "resident in history to resi n. o ule of ;aw: Conversations between the president and his advisors are %enerall$ privile%ed1 but his privile%e is not absolute7 the pres. is <6T be$ond the reach of =udicial process. o Court said: It6s the role of the court to decide whether the "res. has executi!e pri!ile e and if so) its scope. Court then reco ni3ed the existence of executi!e pri!ile e. Executi!e pri!ile e is 91T a$solute) and should $e wei hed a ainst counter!ailin interests. 0a$eas corpus can $e suspended in times of insurrection.

<otes to Consider The le itimate needs of the >udicial process may outwei h presidential pri!ile e 01I?I9J: <hen the round for assertin pri!ile e as to su$poenaed materials sou ht for use in a criminal trial is $ased only on the enerali3ed interest in confidentiality: it cannot pre!ail o!er the fundamental demands of due process of law in the fair administration of criminal >ustice. ?efense was that 9ixon stated the other $ranch of o!ernment could not order him to do nothin .

II. The 'uthorit$ of Con%ress to Increase Executive Power F>I Con%ress can1 b$ two?thirds vote1 override the president,s veto of a bill. Clinton "pres.# !. City of 'ew 2or B 4'ederal deficit was a hu e issue here5 o The Iine Item Keto Act $ecame effecti!e in 1--C which a!e the pres. authority to !eto 4or cancel5 particular parts of an appropriation $ills while allowin the rest to o into effect. o Ji!es "res. authority to cancel # types of pro!isions that ha!e $een si ned into law: any dollar amount of discretionary $ud et authority any item of new direct spendin any limited tax $enefit o 2 separate actions a ainst the "res. 1. City of 9ew Lor() 2 hospital associations) 1 hospital) and 2 unions that represent health care employees 4In!ol!es an Eitem of new direct spendin +5 2. 'armers6 cooperati!e consistin of a$out #2 potato rowers in Idaho and an indi!idual farmer. 4In!ol!es a Elimited tax $enefit+5 It was a reDuirement that the city of new yor( return money ;I44@E: Fay Con ress rant the "res. the authority to cancel portions of le islation after it has $een enactedM <hether con ress can rant le islati!e power to the presidentM 91N This is different from constitutional !eto $ecause this type of !eto ta(es place /E'1HE the $ill $ecomes a law whereas the statutory cancellation occurs after the $ill $ecomes law 4so it6s a repeal) rather than a !eto5. 0EI?: The Iine Item Keto Act is unconstitutional: if the president wishes to exercise his !eto power) he must !eto a $ill in IT% E9TIHETL $efore si nin it. "ere he signed the law then vetoes parts of it under Congress#s authority fro$ the %ine Ite$ &eto Act but it#s unconstitutional because essentially Clinton is $a'ing a law by (repealing) * not really vetoing * the parts of the law he doesn#t want. The Constitution is a$biguous because line ite$ is +,T prohibited or expressly given.

+otes fro$ Treatise The procedures for enactin and !etoin laws contained in the Constitution must $e strictly adhered to and that any chan es must come from a constitutional amendment) not le islati!e action. ?issents $y /reyer) 16Connor) and %calia state that in modern times $ills ha!e too many di!isions to $e separately si ned $y the president. Class <otes In essence if you are !etoin the $ill then you are ta(in on le islati!e power.

"resident6s ar ument was that $Oc of spendin and authority. III. The Constitutional Proble&s of the 'd&inistrative 4tate o Interstate Commerce Commission was created in 1PPC * it created federal administrati!e a encies with $road powers 4example: 'ood and ?ru Administration) En!ironmental "rotection A ency) the %ecurities and Exchan e Commission) etc.5 o These a encies enerally ha!e le islati!e) executi!e) and >udicial power) $ut this can $e trou$lin for one a ency to ha!e all three powers. 9on dele ation doctrineQprinciple that Con ress may not dele ate its le islati!e power to administrati!e a encies.

A3A )chechter poultry Corp. !. () 441-#55 p . 252 o 'ACT%: o ,nder the 9ational Industrial Heco!ery Act) Con ress a!e the "resident authority to appro!e and implement as law codes that were su ested $y trade or industrial roups. o 1ne code that was implemented B the Code of 'air Competition for the Ii!e "oultry Industry 4Implemented $ecause of the terri$le economy5 B prescri$ed la$or and operational standards for poultry $usinesses in and around 9ew Lor( City. R was con!icted for conspiracies and !iolations of the code. o 0EI?: Con ress may not dele ate unrestrained law ma(in authority to the "resident. o A9AIL%I%: The law is too $road and i!es the "res. too much discretion to decide what laws to enact. 4In!alidates this $ecause of the non.dele ation doctrine.5 o ule of ;aw: Con%ress &a$ <6T dele%ate law &a+in% authorit$ to an executive a%enc$ without prescribin% specific standards for exercise of that authorit$7 the le%islature &a$ not dele%ate to the executive branch the unfettered authorit$ to &a+e law.

o -ave .resident authority to $a'e laws without li$itations so unconstitutional because it gave .res. broad legislative power. o Con ress implemented a chec(list on limits set for "resident The trade or industrial roups that propose codes must $e truly representati!e of the industry mem$ers

Codes must not promote monopolies or $e oppressi!e to small enterprises

o Panama 5efining Co. !. 5yan 41-#55 p . 25# * o 'ACT%: Con ress enacted a pro!ision in the 9ational Industrial Heco!ery Act that a!e "resident power to prohi$it the transportation of petroleum products in excess of the amount allowed $y state law. And the "resident did so issuin an executi!e order. o I%%,E: Fay Con ress authori3e the "resident unrestricted law.ma(in authorityM o 0oldin : 91N o A9AIL%I%: Con ress simply left this matter to the "resident and if left alone) Con ress could dele ate authority to the "resident for anythin . The "resident had no rules B didn6t ha!e to ma(e any factual findin s $efore issuin the prohi$ition. This dele ation of authority was unlawful. o ule of ;aw: It is a violation of the separation of powers for Con%ress to dele%ate law?&a+in% authorit$ to the Pres. without i&posin% standards or rules li&itin% that authorit$7 Con%ressional dele%ation of power to the executive branch &ust be specific and li&itedA

Con ress can dele ate le islati!e power to other $ranches $ut there must $e standards set. HI??IC7 o Whitman !. American &ruc ing Assn.* Inc
PROCEDURAL POSTURE: Several cases arose when the Environmental Protection Agency (EPA) revised national ambient air quality standards (NAAQS) for particulate matter and o one! "he petition for writ of certiorari to the #istrict of $olumbia $ircuit was granted% to address the issues of whether EPA could consider costs in setting NAAQS% and whether its interpretation of the $lean Air Act ($AA) relating to implementation of revised o one NAAQS was permissible! o OVERVIEW: "he court found that & '()(b)(') of the $AA% which required the EPA to set air quality standards at a level to protect the public health with an adequate margin of safety% fit comfortably within the scope of discretion permitted by its precedent! Also% the court affirmed the court of appeal*s holding that & '()(b) of the $AA unambiguously barred cost considerations from the NAAQS+setting process! ,urther% the court found that the court of appeals had -urisdiction to review the EPA*s interpretation of the part of the $AA relating to the implementation of the revised o one NAAQS% since its implementation policy was a final agency action that was ripe for review! .owever% the court remanded the action% since it held that the EPA*s implementation policy for nonattainment areas was unlawful! /hatever effect could be accorded gaps in the section addressing o one specifically (subpart 0)% as implying some limited applicability of the section containing general nonattainment regulations that pertained to every pollutant% they could not be thought to render subpart

0*s carefully designed restrictions on EPA discretion utterly nugatory once a new standard had been promulgated! OUTCOME: "he $AA properly delegated legislative power to the EPA% but the EPA could not consider implementation costs in setting primary and secondary NAAQS! Also% the court of appeals had -urisdiction to review the EPA*s interpretation of the part of the $AA relating to the implementation of the revised o one NAAQS1 however% the EPA*s interpretation of that part was unreasonable!

Issue: <hether the Clean Air Act dele ates le islati!e power to the administrator of the E"AM @en!ironmental protection a encyA <hether the statute has dele ated le islati!e power to the a encyM %ection 12-4$5415 instructs the E"A to set primary am$ient air Duality standards the attainment and maintenance of whichSare reDuisite to protect the pu$lic health with an adeDuate mar in of safety. The ;e%islative Beto and Its !e&ise Ie islati!e !eto was created to chec( on the actions of administrati!e a encies. It was o!erturned in Immi ration T 9aturali3ation %er!ice 4I9%5 o 6ohn +. +istretta !. (nited )tates 41-P-5 p . 25& *;'<!C' " C'4E allowed =udiciar$ co&&ittee to review sent %uidelines. o 'ACT%: Criminal challen es the constitutionality of Con ress enactin le islation to re!ise the federal sentencin process. The Act creates the ,nited %tates %entencin Commission and i!es them authority to create sentencin uidelines. It ma(es sentencin determinate accordin to the uidelines and $indin on >ud es with only limited discretion to steer away from them 4for specific reasons5. It6s !ery specific as to its duties and its purpose for creation. o In 3A $ the 3A legislature enacted crimes and its penalties in the 3A criminal code it imposes mandatory sentences and ranges of sentences. 7ere* Congress ga!e this power to a )entence Commission and set up limits to what they could do. o I44@E: Ca$ Con%ress dele%ate le%islative authorit$ to an independent =udicial a%enc$D o Eoldin%: >E4. 's lon% as the #uidelines are C;E' ;> defined. o A9AIL%I%: Con ress does ha!e the power to fix sentences to crimes) su$>ect to the discretion of the >udicial $ranch. The criminal ar ued that this dele ation a!e the Commission excess discretion and it !iolated the non.dele ation doctrine. o 0a!e to apply the Eintelli i$le principle+ test * due to our e!er chan in society) it is necessary for Con ress to dele ate certain amount of power to such a encies. It is Constitutionally sufficient if Con ress clearly defines three items: 1. the eneral policy 2. the a ency which is to apply it #. the $oundaries of this dele ated authority (The test has $een met in this case $ecause Con ress was specific with the commission6s oals and purposes.

o Also) the act does not !iolate the separation of powers principle $ecause the sentencin of criminals has 9EKEH $een the exclusi!e role of only one $ranch of o!ernment o ule of ;aw: Con%ress is <6T forbidden fro& dele%atin% its le%islative power to another person or entit$ if it la$s down an 8intelli%ible principle9 to which the person or entit$ is directed to confor&7 the federal sentencin% %uidelines are constitutional. :I$$igration and +aturali/ation Service v. 0agdish 1ai Chadha 'ACT%: 4/asically this in!ol!es a le islati!e !eto of an ad>udicatory proceedin where Con ress 4$y the 0ouse 1f Hepresentati!es only5 o!erturned an immi ration >ud e6s decision to allow Chadha to remain in the country5. Ad>udicatory process: 15 findin of facts 25 determination of law #5 1nce administrati!e a ency ma(es a determination then it sends the case to the district court where the administrati!e a ency is located. 0istory: In the 1-#2s) Con ress created the Ele islati!e !eto+ as a chec( on the actions of administrati!e a encies. Ie islati!e !eto B allows Con ress) or one of its houses or committees to o!erturn an a ency6s action. Con ress enacted laws that allowed for le islati!e !etoes 4o!er #22 laws5 B $ut found unconstitutional in this case. ,asier to do a legislati!e !eto than to o!erride the executi!e branch by two8thirds !ote. 3egislati!e !eto is doing this under the Immigration and 'aturalization Act B /IJ I%%,E 0EHE B is that the law !iolates the presentment clause $ both houses of Congress pass law with Presidents appro!al. Chadha and 5 other immi rants were to $e ranted permanent resident status upon the expiration of their !isas to stay in the ,% $y an action of the ,% Attorney Jeneral 4executi!e $ranch !ia "residentUs appro!al of such an action5) $ut the 0ouse of Hepresentati!es 4le islati!e $ranch5) after a resolution was $rou ht forth to Vput a le islati!e stamp on the actionV in the 0ouse of Hepresentati!es) the 0ouse) without any further discussion in the =udiciary Committee or any copies of the resolution to $e made a!aila$le to other 0ouse mem$ers) su$mitted the resolution for a !ote. After the 0ouse !eto) it was not su$mitted to either the %enate or the "resident) $ut I9% =ud e reopened proceedin s and Chadha was ordered deported. The resolution was denied) and an immi ration >ud e ordered Chadha and the others deported. I9% a reed with Chadha that the 0ouse action was unconstitutional. The Court of Appeals) 9inth Circuit recei!ed !ast support in the form of amicus curiae $riefs from $oth the %enate and the 0ouse) and the Court a reed that the 0ouse action was unconstitutional. This Court affirms. @the resolution was not treated as a le islati!e act as per W2&&4c5425.A

I44@E: Is the one.house Ele islati!e !eto+ unconstitutional) e!en when authori3ed $y a properly enacted statuteM

E6;!I<#: Les. The mo!e itself was unconstitutional) as the 0ouse) $y its one house action) too( a power of the executi!e $ranch 4Attorney Jeneral 7at3en$ach5 and replaced it with a le islati!e act) which completely chan ed the act itself. '<';>4I4: After oin throu h a lot of ori inalist context as to the 'ramersU intent to create three $ranches of o!ernment) and that the three $ranches were there in part to chec( on one another to preser!e the sanctity of the powers) and the people. This was a le islati!e act in nature. This act also) in a sense) o!erruled the Attorney Jeneral and mandated ChadhaUs deportation. Con ress actually dele ated the authority it su$seDuently too( away to the executi!e $ranch) specifically the Attorney Jeneral) of the authority to allow deporta$le aliens to remain the ,% should their case fit the hardship uidelines. %ince Con ress dele ated such authority) the dele ation of powers doctrine mandates that the action must $e passed throu h $oth houses of Con ress and then presented to the "resident as per Article 1) WC of the Constitution. Con ress must a$ide $y that dele ation unless it is le islati!ely altered or re!o(ed. There are only four provisions set forth in the Constitution in which only one house of Congress would have to act: o 2. initiating i$peach$ents o !. Senate power to conduct i$peach$ent trials o 3. Senate power to confir$ presidential appoint$ents and o 4. Senate5s power to ratify treaties. This further supports the notion that what the le islatureUs action was indeed was not an implied power. Con ress cannot et around the slowness and tediousness of o!ernment) as this is what the 'ramers intended. ule of ;aw: 9on.dele ation doctrine: mandates that the action must $e passed throu h $oth houses of Con ress and then presented to the "resident as per Article 1) WC of the Constitution. Con ress must a$ide $y that dele ation unless it is le islati!ely altered or re!o(ed. 0i h court: ;e%islative action is not le%iti&ate unless there is bica&eral approval and present&ent to the President7 the le%islative veto is unconstitutional. The legislature too' over the ad$inistrating of law 6usurping the ex. branch7. I&portant !icta: The intent of the 'ramers in writin the Constitution was to pro!ide a o!ernment which would satisfy $oth the lar e and small states) which is why there are two houses 4Jreat Compromise5. These two houses chec( on one another) and the executi!e chec(s on them) and the >udiciary chec(s on $oth) with Con ress chec(in on the >udiciary. Anythin else is unconstitutional. !issentin%: 4=ustice <hite5 The Act was merely a dele ation of rulema(in and le islation of law. The le islati!e !eto is a chec( upon rulema(in $y administrati!e a encies and upon $road $ased policy decisions of the Executi!e /ranch. I&p,t TE C4:

/icameral reDuirement B the const. di!ides the le islati!e $ranch into 2 houses) each of which must appro!e of all le islati!e acts 4with & limited exceptions5 $y a ma>ority !ote $efore the le islation can $ecome law. "resentment reDuirement B the Constitution reDuires that all le islation) after passin $oth houses of Con ress) $e presented to the "resident $efore it may $ecome law. ,nicameral B an action ta(en $y one house of Con ress 4$y 0ouse of Hepresentati!es or %enate5 wOo action $y the other house Chec+in% 'd&inistrative Power: o Con ress can control administrati!e a encies throu h statutes B to perform certain tas(s or deny them authority in certain areas. o It can o!erturn a ency decisions $y statutes) followin the prescri$ed procedures for $icameralism and presentment. The "res. can !eto these statutes) $ut Con ress can o!erride this $y two.thirds !ote of Con ress. o Con ress also controls the $ud et of these a encies and can use this to chec( its wor(. The committees that o!ersee the a encies monitor and control the a encies actions. o Appointment and remo!al power B "res. has authority to select mem$ers of a encies) su$>ect to confirmation $y the %enate. The "res. also has the power to remo!e a ency officials. 'ppoint&ent Power * a.(.a. EAppointments Clause+ . Art. II W2 B the "resident Eshall nominate) and $y and with the Ad!ice and Consent of the %enate) shall appoint Am$assadors) other pu$lic Finisters and Consuls) =ud es of the %upreme Court) and all other 1fficers of the ,nited %tates) whose Appointments are not herein otherwise pro!ided for) and which shall $e esta$lished $y Iaw: $ut the Con ress may $y Iaw !est the Appointment of such inferior 1fficers) as they thin( proper) in the "resident alone) to the Courts of Iaw) or in the 0eads of ?epartments.+ B The issue here is who may possess the appointment power. Alexia +orrison* Independent Counsel !. 9lson "subpoenaed witness# 441-PP5 p . 28P 'ACT%: o <itness challen es the Ethics in Jo!ernment Act of 1-CP: specifically the independent counsel pro!isions which allow for the appointment of an independent counsel to in!esti ate) and if appropriate) prosecute certain hi h.ran(in o!ernment officials for !iolations of federal criminal laws. 4This expired in 1--- after 7enneth %tar in!esti ated "resident Clinton5 o The Attorney Jeneral must first conduct an in!esti ation of the matter and once complete or once -2 days has elapsed) if there are rounds) then the %pecial ?i!ision shall appoint counsel. o Counsel B has full authority to exercise all in!esti ati!e functions of the ?ept. of =ustice. o Attorney Jeneral may remo!e the counsel if he is ill or for ood cause and must su$mit a report to the %pecial ?i!ision and the =udiciary Committees of the %enate and 0ouse descri$in the rounds for remo!al. The %pecial ?i!ision may also remo!e counsel if the

o o o o o

o o o o o o

o o

in!esti ation is complete. Also) counsel is su$>ect to the o!ersi ht of Con ress and may ha!e to su$mit reports or statements of his acti!ities. I%%,E: ?oes the Constitution reDuire that the "resident exercise sole and exclusi!e control o!er the appointment of all executi!e officersM And whether appellant is Einferior+ or Eprincipal+ officer $ecause if she is principal) then the act !iolates the Appointments clauseM Inferior. <ho may possess the apt. powerM A9AIL%I%: 9o $ecause the appointments clause di!ides executi!e officers into 2 classes: principal and inferior. "rincipal officers is for the "resident with ad!ice and consent from %enate. Appoitments clause B Art. 2 %ect. 2 B Con ress may !est the appointment of inferior officers in the president) courts of law) or heads of departments Con ress determines the method to appoint inferior offices *may $e made $y heads of departments or the courts or the "resident. In this case) it6s an Inferior office $ecause o %u$>ect to remo!al $y a hi her Executi!e /ranch official. o Empowered $y the act to perform only certain) limited duties. o 1ffice is limited in >urisdiction. o 1ffice is limited in tenure B once tas( is o!er) counsel6s >o$ is complete. ule of law: 4ince the Independent Counsel is an inferior officer1 a law %ivin% =ud%es the authorit$ to appoint an Independent Counsel did <6T violate the Constitution7 The President does <6T have exclusive authorit$ to appoint executive officers. Congress cannot give ITS8%9 power to appoint Attorney -eneral * today he#s in charge of investigating president 6but since the expiration of the 8 of -overn$ent Act of 2:;< there#s no authority to appoint individual counsel to investigate7. ?issent: The "res. should ha!e exclusi!e control o!er criminal in!esti ations and prosecutions. 9otes: EInferior offices+ are ones that are not finite 4e. .) state department) CIA5. e: Inferior officer )see also dicta on p. 3FG2 o H factors: I. 4ub=ect to re&oval b$ a hi%her Executive 5ranch official. 3. E&powered b$ the 'ct to perfor& onl$ certain1 li&ited duties. 3. 6ffice is li&ited in =urisdiction. H. 6ffice is li&ited in tenure. The president can remo!e any$ody that is in the executi!e office. Con ress can6t remo!e inferior offices.

:The e&oval Power B there is no pro!ision in the Constitution i!in the "resident authority to remo!e executi!e $ranch officials: howe!er) the "res. may remo!e executi!e officials unless remo!al is limited $y statute. o Con ress) $y statute may limit remo!al $oth if it is an office where independence from the "resident is desira$le) and if the law does not prohi$it remo!al) $ut rather) limits remo!al to instances where ood cause is shown ;The followin cases demonstrate this concept.

o Impeachment of "resident Andrew =ohnson when he fired the %ecretary of <ar * this !iolated a federal law prohi$itin the remo!al 4the Tenure in 1ffice Act which prohi$ited the "res. from remo!in (ey mem$ers of the ca$inet B passed $ecause =ohnson was from the %outh and many feared he would pre!ent reconstruction in the 9orth5. Impeachment passed in 0ouse of Hepresentati!es) $ut was one !ote short in the %enate) so =ohnson completed his term as "resident. &his was !ery political- Impeachment doesnt occur often $ remo!al of public officials occurs more often. o Clinton was also impeached. o Inferior officers $ 1 types of go!ernment employees in 3A $ "0# ci!il ser!ice "1#school teachers and uni!ersity professors $ granted tenure for life once they teach long enough "/#unclassified $ those who ser!e at8will employees "Contract attorneys is an example#. o +yers !. (nited )tates $ I%%,E: whether the "resident has the exclusi!e power of remo!in executi!e officers of the ,% under the Const. whom he appointed wO the ad!iceOconsent of the %enateM Fyers was appointed) with appro!al from %enate) as the "ostmaster) $ut then remo!ed $y the new "resident. There is authority to re>ect appointment) $ut not power to pre!ent the remo!al. There is no express pro!ision respectin remo!als in the Constitution) except for impeachment. &he postmaster ser!es at the pleasure of the president and doesnt ha!e a set term : so an at8will employee. o 7umphreys ,xecutor !. (nited )tates 8 X see( unpaid salary due when 0umphrey was appointed $y "res. 0oo!er and appro!ed as the 'ederal Trade Commissioner) with a term of C years. /ut the new "res. as(ed for his resi nation wantin to appoint someone else) and when 0umphrey refused) "resident Hoose!elt remo!ed him from office. The 'ederal Trade Commission Act states that a commissioner may $e remo!ed for inefficiency) ne lect of duty or malfeasance in office B so Pres.,s re&oval power is enu&erated and therefore li&ited. EE;!: Pres. did <6T have power to re&ove Eu&phre$. 7eirs sue for his bac salary. This ter$ sets up a li$itation on the .resident#s power. o Wiener !. (nited )tates 8 X as remo!ed as commissioner of the <ar Claims Commission 4part of the Act which compensates "1<s and those who ha!e suffered at the hands of the enemy durin <<II5. Three person commission all appointed $y the "res. Iimit on Commission to wind up its affairs not later than # years after the expiration of the time for filin claims 4tenure of commission5 and no pro!ision was made to remo!e commissioner. X was nominated and appro!ed $y "resident Truman) and remo!ed $y "resident Eisenhower B >ust so that he could nominate who he wanted. 0EI?: Pres. had no power to re&ove b$ the Constitution and no power is %iven to hi& b$ statute =ust because Con%ress said nothin% about it. &hey were ad.udicating claims; <uasi8.udicial because they were ser!ing as a court to decide who would get money for claims. &hey did not ha!e power from .udicial branch $ .ust trying to expedite the process for P9Ws to get their =. Can Pres. remo!e >? 'o* since this was a fixed term of commission. 5egulatory commissions $ ?ederal &rade commission* ?CC* etc.* created and sometimes referred to the @th branch of the go!ernment.

o Aowsher !. )ynar $ I%%,E: <hether the assi nment $y Con ress to the Comptroller Jeneral of the ,% of certain functions under the /alanced /ud et and Emer ency ?eficit Control Act of 1-P5 !iolates the doctrine of separation of powersM LE%. Jramm.Hudman. 0ollin s Act passed in 1-P5 which sets the maximum deficit amount for federal spendin for years 1-P8 throu h 1--1. If this is !iolated) then across the $oard cuts must $e made in federal spendin to reach the tar eted deficit le!el. 0owe!er) Con ress cannot reser!e for itself the power of remo!al of an officer char ed with the execution of the laws except $y impeachment. If allowed) it would essentially $e a con ressional !eto. Con%ress is i&pedin% on the executive branch,s powers because it places the power to re&ove the Co&ptroller #eneral in its own hands. o +orrison !. 9lson $ Act puts the remo!al power in the hands of the Executi!e $ranch statin that independent counsel may $e remo!ed from office only $y the Atty. Jeneral and only for ood cause. And the decision to remo!e is su$>ect to >udicial re!iew. 0EI?: the limitation of remo!al does 91T depri!e the "resident of control o!er the independent counsel to his >o$. Can remo!e for good cause. o T0E CA%E% A/1KE: %eem to esta$lish that the "resident may fire any executi!e official. /ut Con ress can limit remo!al $y statute if $oth) it is an office where independence from the "res. is desira$le and the statute does not prohi$it remo!al) $ut limits it to where there is ood cause. IB. 4eparation of Powers and Forei%n Polic$ the Constitution says !ery little a$out forei n policy decision ma(in . Con ress has the power to declare war) $ut the "resident is the Commander.in.Chief. Art. II also i!es the "resident power) E$y and wO the ad!ice and consent of the %enate) to ma(e Treaties) pro!ided two.thirds of the %enators present concur)+ <on?dele%ation doctrine * the principle that Con ress cannot dele ate le islati!e power to executi!e a encies ,ach president spends different amounts of time on domestic and foreign affairs. It depends both on the President in office and the time frame of the year. I. 're forei%n polic$ and do&estic affairs differentD in the case that follows) the ,%%C was a ressi!ely enforcin the non.dele ation doctrine. Forei%n affairs v. !o&estic affairs B(nited )tates !. Curtiss8Wright ,xport Corp.41-#85 ;;6n bar last $ear p . 2P2 o Con ress passed a =oint Hesolution authori3in "res. Hoose!elt to stop sales of arms to countries in!ol!ed in the Chaco $order dispute 4/oli!a and "ara uay5) so he did so in an Executi!e 1rder. o Rs were indicted for tryin to sell 15 machine uns to /oli!a in !iolation of the Ex. order. o I%%,E: Fay Con ress dele ate law.ma(in authority to the "resident in matters of forei n affairsM

o 01I?I9J: LE% $ecause it is a forei n affairs issue 4and not a domestic affair issue5. If it was a domestic affair) then no $ecause it6s su$>ect to the enumerated powers. %ince the "resident is the representati!e in forei n affairs) then he has discretion to ma(e these decisions. 0e is $est to ma(e this decision since he has confidential sources 4such as spies and forei n affairs officers5. o ule of ;aw: The non?dele%ation doctrine does not bar Con%ress fro& dele%atin% %reat authorit$ and discretion to the President in the conduct of forei%n affairs7 The president has broad authorit$ to conduct forei%n affairs. This is a $a=or current issue due to the (war on terroris$.) So there is >1,A? power in foreign affairs. o ?2I% &here is currently an executi!e order to limit tra!el to Cuba. o Youngstown case $ was shut down by executi!e order and it had to ha!e expressed order because its a domestic affair "internal#* but here he did '9& ha!e to ha!e express authority because it was a foreign affair issue "external# and he has broad power. o Congress decides China is run by barbarians and passes a resolution that pres. may spend no money tra!eling to China. Can Congress do this? 2es* has plenary spending power. A(& pres. is the one who ma es the foreign affairs policiesCissues. 'ot a correct answer because there are two conflicts in a Const. pro!ision. 1eview on pg. !<3@!<4 notes on Curtis Aright * and 'eep this Buestion in $ind for test. 3. Treaties and Executive '%ree&ents Art. II) W 2 states that the "res. Eshall ha!e power) $y and wO the ad!ice and consent of the %enate) to ma(e Treaties) pro!ided two.thirds of the %enators present concur.+ Treat$ B an a reement $etween the ,% and a forei n country that is ne otiated $y the "resident and is effecti!e when ratified $y the %enate Executive '%ree&ent an a reement $etween the ,% and a forei n country that is effecti!e when si ned $y the "resident and the head of the other o!ernment. 4don6t need %enate appro!al.5 &he executi!e agreement is restricted to the term of the President* unless its accepted by the next president. Why ha!e them? Ira<* Iran* )outh Dorea 4 see how Eames affects our relationship with these countries. Executi!e a reements B not mentioned in Constitution) $ut has $een well esta$lished that it is constitutional. Anything done by treaty can be done by executive agree$ent. +ot one executive agree$ent has been declared unconstitutional as usurping Senate#s treating approving power! Executi!e a reements) li(e treaties) pre!ail o!er state law and policy. 7ow long do they last? 5estricted to his term of office unless accepted by next president. Eames F +oore !. 5egan* )ecretary of the &reasury $ 0GH0 p . 2P8 &5# ,.%. 85& 41-P15 "rocedural 0oldin : X6s appeal the lower court6s decision denyin an in>unction to pre!ent the enforcement of the executi!e order. 'ACT%:

9o!. &) 1-C-) the American Em$assy in Tehran 4in Iran5 was sei3ed $y Iranians 4who hated the ,%5 and diplomatic personnel were captured and held hosta e. "resident Carter declared a national emer ency under the International Emer ency Economic "owers Act 4IEE"A5 and $loc(ed the remo!al or transfer of all property and interests of the Jo!ernment of Iran B basically it fro/e all Iranian assets *( you got our people then we got your $oney) 6and there was a lot of $oney due to oil7 in the ,% in an Executi!e 1rder. =an. 1-P1 B another executi!e order si ned $y "resident which contained a pro!ision terminatin all le al proceedin s a ainst the Iranian o!ernment in ,% courts and it reDuired that ,% citi3ens ar$itrate all claims a ainst Iran. What happens between 0GIG and 0GH0? 7ostages are held for this time. &he day 5eagan was sworn in* the hostages were released and 5eagan established a new executi!e order unfreezing the Iranian assets. Xs $rou ht this suit $ecause it was pre!entin them from liti atin a ainst the Iranian $an(s: Xs contend that the implementation of the a reement with Iran was $eyond the "resident6s power and unconstitutional. Ion term policy of ,% to do this: extin uish or renounce claims of ,% nationals a ainst forei n o!ernments in return for lump.sum payments or the esta$lishment of ar$itration procedures. I%%,E: ?oes the "resident ha!e the authority to settle claims of ,% citi3ens a ainst forei n nations without the appro!al of %enateM 01I?I9J: LE%. A9AIL%I%: The "res. does ha!e the authority to settle claims when such action is necessary to the resolution of a ma>or forei n policy dispute. There has $een a lon history of our o!ernment allowin the "resident to do such without the appro!al or ad!ice of %enate: therefore) Con ress has implicitly appro!ed the practice of claim settlement $y executi!e a reement. 1-&- B Con ress enacted the International Claims %ettlement Act B created a procedure to implement future settlement a reements and $y enactin this) Con ress a!e its appro!al of such a reements. Congress created the International Claims Commission "now the ?oreign Claims )ettlement Commission# and ga!e it .urisdiction to ma e final and binding decisions with respect to claims by () nationals against settlement funds. Eid President ha!e )enate appro!e these claims $ through the International Claims Commission? '9- If he had* this case would not be here. Iran didnt want it to go to the claims commission because it would ta e 2,A5)* and the Iranians wanted their money bac <uic ly. &he presidents action was deemed to be an executi!e order* and not a treaty* so the )enate didnt need to appro!e this. ule of ;aw: The President has the power to settle clai&s b$ @4 citi-ens a%ainst forei%n %overn&ents1 even without the consent of the @.4. citi-ens whose clai&s are co&pro&ised7 an executive a%ree&ent has the sa&e force and effect as a treat$ and can alter the ri%hts of @.4. citi-ens.

If arrested in another country* as for ,mbassy and call counselor from your country. 2ou can do this because we are under a treaty* but &exas has been arresting and executing +exicans without their phone calls. &he President .ust did away with this "canceled# the treaty. Can he do this? 'o cases concerning this. Joldwater !. Carter 8 > contested the Presidents power to cancel treaties wCo )enate appro!al* but dismissed because of non8.usticiability. )o this issue has not been resol!ed. War in 3ebenon $ )yrians should lea!e. () withdrew from 3ebenon* but then in!aded Jrenada. Castro sent his agents to Jrenada and was going to turn in into a Communist nation and ill all tourism there. () in!aded it to pre!ent Castros Communism. &oo 1 days to ta e o!er entire island. Whats the presidents restriction to send troops somewhere when he thin s there is a danger there??&here are about /K military engagements where Congress didnt declare WA5. &itle LK $ War and 'ational Eefense 4 War Powers 5esolution Act $ passed by Congress /een on $ar exam T<ICE B $ut ne!er $een liti atedN <hat does it doMM Iimits president6s power as Commander in Chief. "ro!ides for C19%,ITATI19 wO Con ress 4instead of prohi$ition5 troops were sent to Aosnia Congress could limit this by limiting the money used for the Mwar on terrorism.N In this Duestion) you6d ri ht out the details of what the Act says) discuss pro$lems with le islati!e !eto. It6s undecided as to what it means to Edeclare war.+ The <ar "ower6s Act is pro$a$ly unconstitutional) $ut it has ne!er $een challen ed.

E. Chec+s on the President +ixon v. 9it/gerald X fired R when R testified to Con ress that money in ?ept. of ?efense 4Air 'orce5 was essentially wastin money with testin of plane. This em$arrassed the Air 'orce) and 9ixon fired R. Can "res. do thisM LE% $ecause of a$solute immunity. A$solute immunity *The president has absolute i$$unity fro$ civil liability for his official acts * but not for C+,99ICIA% ACTS 6see Clinton !. 6ones $ where his acts committed before ta ing office is not immune and not official acts; its not e!en <ualified immunity "because he argued that depositions and such would interfere with Presidents .ob#. o "ro$lem: "uts the president a$o!e the lawM o 'or criminal or ci!il acts $efore officeQlia$le for acts done prior to presidency. o 0owe!er) %reat deference is to be %iven to the president. Why absolute immunity? o If not* then the Presidents discretion would be constantly <uestioned by Congress. Immunity for others? All other federal officials* including presidential aides* only recei!e Bualified i$$unity "this is li$ited i$$unity# for their official acts "they lose this immunity if they !iolate a Mclearly establishedN right* whether intentionally or negligently#.

I$peach$ent D the ulti$ate chec' on presidential power Art. II) W& EThe "resident) Kice "resident and all ci!il 1fficers of the ,%) shall $e remo!ed from 1ffice on Impeachment for) and Con!iction of) Treason) /ri$ery) or other hi h Crimes and Fisdemeanors.+ 0ouse of Hepresentati!es has the sole power to impeach B $y ma>ority !ote: if there is an impeachment in the house) then a trial is held in the %enate. Art. 1) W# i!es the %enate the sole power to try impeachments and Eno person shall $e con!icted wOo concurrence of two.thirds of the mem$ers present.+ Example B Clinton was impeached) $ut the %enate didn6t con!ict him. %orillard Tobacco Co. v. 1eilly 9ACTS ISSC8 1C%8 18AS,+I+"andy v. 1u$sfield * supple$ent case ;;<as on the $ar exam B X was $ein held in Juantanamo /ay and a citi3en of ,%) $ut held as Ean enemy com$atant.+ 0is citi3enship was Duestioned 4in dissent5. 0e filed a writ of ha$eas corpus B if X is an enemy com$atant. Court ordered that they could hold him) $ut for a reasona$le amount of time. <here are enemy com$atants heldM 9on.detention act B Emer ency ?etention Act. If he6s shootin at us) then he6s an enemy com$atantN X) a con!erted Fuslim) was in Af hanistan durin the war carryin a weapon. %o the facts classify him as an enemy com$atant.