Executive Power

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Part of a series of lectures given to students in the University of Osnabrück's foreign law program.

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Executive Power

  1. 1. U.S. Constituional LawU.S. Constituional Law Executive Power Slide 1
  2. 2. Executive BranchExecutive Branch Slide 2
  3. 3. Qualification to be Qualification to be President PresidentNatural born citizen What does this mean? Distinguish natuarlized.35 years-old14 years a residentwithin UnitedStates Slide 3
  4. 4. Election of President Election of PresidentNot directly electedElectoral College Electoral votes per state = # of members of Congress (House and Senate) it has. All but two states have winner take all. Electoral college casts votes at later date. Most states bind their electoral college reps by law.Four year terms.Can only serve twice. Slide 4
  5. 5. Removal RemovalTwo step process: Impreachment (majority vote of House) Conviction (2/3 of Senate)“Treason, Bribery, or other high Crimesand Misdemeanors” What is a high crime and misdemeanor? Slide 5
  6. 6. Presidential Powers Presidential PowersBreak down the listof powers in ArticleII How many powers are there? Is this an exclusive list? 2003: President George Bush on the deck of the USS Abraham Lincoln shortly before giving his “Mission Accomplished” speech. Slide 6
  7. 7. Appointment Power Appointment PowerPresident haspower to appointwith advice andconsent of Senate. Includes ambassadors, judges, and “all other officers” What is Advice and Consent? Slide 7
  8. 8. Foreign Affairs Foreign AffairsThe President “shall have the power, byand with the Advice and Consent of theSenate, to make Treaties, provided twothirds of the Senators present concur.” Article II, Sec. 2When may exective agreements be usedinstead of treaties? Slide 8
  9. 9. Treaty v. Executive Treaty v. Executive Agreement AgreementTreaty = an agreement between U.S. andforeign country that is negotiated byPresident and ratified by Senate.Executive Agreement = agreementbetween U.S. and foreign country that iseffective when signed by President. Slide 9
  10. 10. Executive Power Executive PowerAre there limits toexecutive power?“The executivePower shall bevested in aPresident of theUnited States ofAmerica.” - Art II, Cl 1, United States Constitution Slide 10
  11. 11. The Test(s) The Test(s)Youngstown Sheet & Tube v. Sawyer Slide 11
  12. 12. Youngstown Sheet & Youngstown Sheet & Tube TubeDuring the Korean War, President Trumanissued an executive order directingSecretary of Commerce Charles Sawyer toseize and operate most of the nationssteel mills. This was done in order to avertthe expected effects of a strike by theUnited Steelworkers of America.Question - Did the President have theconstitutional authority to seize andoperate the steel mills? Slide 12
  13. 13. Enemy Combatants & Enemy Combatants & Presidential Power Presidential PowerCongress authorized the President "to useall necessary and appropriate forceagainst those nations, organizations, orpersons he determines planned,authorized, committed, or aided theterrorist attacks" . . .President issues order allowing him todetain “enemy combatants.”Soon after two Americans were detained. Slide 13
  14. 14. War Powers War PowersLook at the powers held by both Congressand the President in the Constitution.Where might there be a conflictconcerning when and who can send troopsinto foreign combat? NOTE - Pursuant to the Political Question Doctrine, the Court would like not get involved in answering this question. Slide 14
  15. 15. Declaration of War Declaration of War What constitutes a war declaration?United States President Franklin D.Roosevelt signs a declaration of waragainst Nazi Germany on December11, 1941. Slide 15
  16. 16. Executive Orders Executive OrdersNo explicit constitutional authority. vague authority of President to “take Care that the Laws be faithfully executed”. Used by Presidents since 1789.Can be struck down by Court. Youngstown Sheet & TubeHave used to send troops into war Kosovo in 1999 Slide 16
  17. 17. Legislative Legislative Prerogatives PrerogativesVeto Power (Article I, sec 7, cl 2) Once bill is passed: President can either sign it, let it lapse into law without signing, or object (veto) 2/3 of both House and Senate needed to override the veto.Delegation of Legislative Power Congress gives the Exective Branch regulatory power of certain areas. Which means, in this given area, the Executive Branch creates and enforces the rules. Slide 17
  18. 18. Can the President be Can the President be Investigated? Investigated?Independent Counsel - Created inaftermath of Watergate scandal.Constitutionality of the office was upheldin Morrison v. Olson.Generally, Attorney General has power toappoint special counsel. If AG fails to do so after 90 days, judges on the DC Court of Appeals can appoint. NOTE – this authorization lapsed in 1999. Slide 18
  19. 19. U.S. v. Nixon U.S. v. NixonPresident Nixon refused to hand overtaped conversations he had in the OvalOffice to a special prosecutor who wasinvestigating whether Nixon violated thelaw.Court held that while Presidents do have“executive privilege” it does not extend tocriminal investigations. Slide 19
  20. 20. Executive Privilege Executive PrivilegeExecutive Privilege - Not found inConstitutionCourt says Pres. has ability to keep secretconversations with or memoranda to orfrom advisors. However this is not absolute – U.S. v. NixonDoes this apply to Vice-President? Slide 20
  21. 21. Can the President be Can the President be Sued: Civil Immunity Sued: Civil ImmunityCannot be enjoined for conduct while inoffice. NOTE – but his officers can and commonly are.Cannot be sued for money damages forconduct while in office.Can be sued for conduct prior to takingoffice. see Clinton v. Jones. Slide 21
  22. 22. Can the President be Can the President be Charged with a Crime? Charged with a Crime?Immunity: Criminal Criminal Prosecutions – no case has ever dealt with whether a sitting President can be charged. Most scholars believe the answer is no, and removal is the only remedy. Slide 22

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