Provided to students at the University of Münster and Unversity of Osnabrück.

1. U.S. Constitutional LawU.S. Constitutional Law
Executive Power
Part II

2. Goals of this SessionGoals of this Session
Identify the powers
expressly given to the
President in Article 2.
Analyze how these
powers have been
expanded with the help of
Congress.
Identify areas of
conflicting power.
Discuss whether an
Imperial President has
been created.

3. Allmächtig?Allmächtig?

4. The New ExecutiveThe New Executive
Articles of Confederation
created rule by
committee.
There was no executive,
each state received one
vote in Congress.
All decisions were made
by Congress.
Why an executive?
Decisions can be made
more quickly
Important for:
Foreign policy
Effective executive branch

5. The Imperial President ProblemThe Imperial President Problem
“We are not just going to be
waiting for legislation . . . .
I've got a pen, and I've got
a phone. And I can use that
pen to sign executive
orders and take executive
actions and administrative
actions that move the ball
forward.”
- President Barack Obama, January 11, 2014
https://www.youtube.com/watch?v=KGenVcak5nI

6. “The executive Power shall be
vested in a President of the United
States of America.”
Art II, Sec. 1, Cl. 1, United States CoArt II, Sec. 1, Cl. 1, United States Co
nstitutionnstitution
Follow the link for two views on what
this so-called “vesting clause” means.
“he shall take Care that the Laws
be faithfully executed.”
Art. II, Sec. 3Art. II, Sec. 3
Follow the link for two views on what
this so-called “take care” clause
means.
Head of Executive BranchHead of Executive Branch
Abs. 1, Abschnitt 1 - “Die vollziehende
Gewalt liegt bei dem Präsidenten....”
Abs. 3 - “Er hat Sorge zu tragen, daß die
Gesetze gewissenhaft vollzogen werden”

7. Appointment PowerAppointment Power
President has power to
appoint with advice and
consent of Senate.
Includes ambassadors,
judges, and “all other
officers”
Executive department and
agency decision makers.
Simply majority
Today it is more consent
than advice.
Judge Robert Bork, nominated by
President Reagan for the Supreme
Court in 1987, rejected by the U.S.
Senate.
Artikel II, Abs. 2 Abschnitt 2 -
“Er nominiert auf Anraten und mit
Zustimmung des Senats Botschafter,
Gesandte und Konsuln, die Richter des
Obersten Bundesgerichts und alle sonstigen
Beamten der Vereinigten Staaten.

8. Foreign Affairs
(Express Powers)
Foreign Affairs
(Express Powers)
Congress:
Regulate commerce with foreign
nations
Declare war
Immigration
President:
Enter into treaties
Commander-in-Commander-in-
chiefchief of the military
Recognize foreign
nations
Receive
Ambassadors

9. Treaty Power
(Article II, Sec. 2)
Treaty Power
(Article II, Sec. 2)
“Er hat das Recht, auf Anraten und mit
Zustimmung des Senats Verträge zu
schließen, vorausgesetzt, daß zwei Drittel
der anwesenden Senatoren zustimmen.”
The President “shall have the power, by
and with the Advice and Consent of the
Senate, to make Treaties, provided two
thirds of the Senators present concur.”
Presidents Gorbachev and Reagan
sign the Nuclear Missile Treaty in
1987, it was ratified by the U.S.
Senate in 1988.
Process:
President initiates treaty
negotiations.
If deal reached, it is sent to
Senate for ratification.
If ratified, President has final
say on whether to sign the
treaty.
There are examples of Presidents
not sending negotiated treaties to
the Senate and not signing
ratified treaties.

10. Withdrawing from TreatiesWithdrawing from Treaties
A ratified treaty becomes federal
law.
It replaces any conflicting federal
law.
Only aspects of treaty that impact
domestic law are relevant.
Effect of Unilateral Withdrawal
Arguably, no domestic impact.
Because treaty is federal law, it
would take an act of Congress or
another treaty to change impact on
domestic law.
Can the President, without Senate
consent, withdraw from a treaty?
Never been answered by the Supreme
Court, but Presidents have done it.
Karneval float soon U.S. withdrawl
from INF Treaty

11. Treaty vs. Executive AgreementTreaty vs. Executive Agreement
TreatyTreaty = agreement with
foreign country that is
negotiated by President
and ratified by Senate.
After ratification it
becomes federal
(domestic) law!
Impact on domestic law
remains even after
withdrawal by President
Executive AgreementExecutive Agreement =
agreement with foreign
country that is effective when
signed by President.
Next President can rescind it.
It has NO impact on domestic
law.
Since 1939 over 94% of
agreements with other
countries have been “executive
agreements.”

12. Artikel I & Artikel IIArtikel I & Artikel II
Art. II, Abs. 2:
“Der Präsident ist
Oberbefehlshaber der
Armee....”
Art. 1, Abs. 8:
Der Kongreß hat das
Recht Krieg zu erklären.
Look at the powersLook at the powers held by
both Congress and the
President in the
Constitution.
Power to declare war vs.
commander-in-chief

13. War PowersWar Powers
When and who can send
troops into foreign
combat?
Congress can declare war but
how it is undertaken is up the
President
Can President take overseas
military actions without
Congressional approval?
Supreme Court unlikely to
intercede.
Political Question DoctrinePolitical Question Doctrine –
Controversies that are political in
nature should be left to the political
branches.

14. Declaration of WarDeclaration of War
What constitutes a war
declaration?
“JOINT RESOLUTION Declaring
That a State of War Exists
Between The Government of
Germany and the Government
and the People of the United
States and Making Provisions To
Prosecute The Same.”
Technically signature from
President is not necessary.
United States President Franklin D. Roosevelt
signs proclamation after Congress declares
war against Nazi Germany on December 11,
1941.

15. Authorizations to Use ForceAuthorizations to Use Force
Formal declaration of war
has not happened since
1942.
Instead, Congress
usually grants the
President the authority to
act in a warlike fashion
under certain
circumstances:
“the President is authorized to
use all necessary and
appropriate force against those
nations, organizations, or
persons he determines planned,
authorized, committed, or aided
the terrorist attacks that
occurred on September 11,
2001, or harbored (them)....”
Authorization for Use of Military
Force Against Terrorists (2001)

16. Limiting the President’s Power to
Conduct War
Limiting the President’s Power to
Conduct War
Several options exist for Congress to stop a President
from waging war beyond his power:
Revise/Repeal the resolution
Place limits on use of war power
See War Power Resolutions
Shut off funding for the war
Impeachment & removalImpeachment & removal
None of these options are easy, both politically and
practically.

17. Legislative Tasks
(express and implied powers not found in Article II)
Legislative Tasks
(express and implied powers not found in Article II)
Veto PowerVeto Power (Article I, sec 7, cl 2)
Express power giving President
check on legislative power.
Delegation of Legislative PowerDelegation of Legislative Power
Congress gives Executive Branch
power to create rules implementing
laws.
This basically involves the study of
“Administrative Law,” which will be
discussed in more detail below.

18. Executive OrdersExecutive OrdersExecutive OrdersExecutive Orders
“a directive from the President that
has much of the same power as a
federal law.”
Source: National Constitution CenterNational Constitution Center
Source of the power to make such orders:
Article II express power → vesting clause
Delegated PowerDelegated Power → given to President by Congress
Not the same as federal law:
Can be reversed by future Presidents
Can be challenged as being beyond delegated power.

19. Executive Orders LimitsExecutive Orders Limits
Can be revoked, modified or superseded another
Executive Order.
Congress can revoke, modify or supersede an
Executive Order via law, but subject to Veto.
Courts may declare an Order unconstitutional
Violates some other provision in the constitution
Is beyond the constitutional power of the President.

20. Challenging the Modern PresidentChallenging the Modern President
Sources of the modern President’s power
Express Power (Art. II) – broad interpretations
Example – commander-in-chief power
Delegated Power (Art. I)
Given directly to President
Given to Executive Agency
Often broad and vague delegations of power

21. http://www.annenbergclassroom.org/page/key-constitutional-concep
ts
Starting at around minute 42.
Limiting Presidential
Power Exercise
Limiting Presidential
Power Exercise

22. Youngstown Sheet & TubeYoungstown Sheet & Tube
●
Truman nationalizes steel mills in order to make sure
production of steel necessary for war effort continues.
●
Truman claims he can do this as commander-in-chief in
order to make sure the war effort is not jeopardized.
●
Mill owners claim that Truman is acting as a lawmaker by
issuing this order; under separation of powers only Congress
can make laws.
●
In other words he is violating concept of separation of power and
doing something the Constitution does give him the power to do.

23. Opinions of the CourtOpinions of the Court
●
Justice Jackson’s concurrence sets forth
three zones of presidential powerthree zones of presidential power.
Majority Opinion - President may only act pursuant to the
express powers given to him or according to powers
Congress has delegated to him.
Express Power = Commander-in-Chief; what Truman attempted to
do was lawmaking, as current law prohibited taking of property to
resolve labor disputes.
No delegated power to take property under these circumstances-

24. Zones of Power
Test
Zones of Power
Test
Not in 1st zone because
Congress has not made any
delegation of power to seize
private property.
Not in 2nd zone because
Congress has listed instances
when property can be taken.
In 3rd zone. President’s
actions are inconsistent with
Act of Congress.

25. Power Delegated Directly to PresidentPower Delegated Directly to President
Remember, Congress can give the President and Executive
Agencies power (rule making, adjudication, discretionary) =
delegated powerdelegated power.
EXAMPLE: Trump v. Hawaii
President refuses entry to citizens from six mostly Muslim countries
He claims power was given to him by Congress to do this.
Opponents claims:
Congress prohibited discrimination in issuing visas
President used delegated power in arbitrary (willkürlich) manner

26. 8 U.S.C. §1182(f): “Whenever the
President finds that the entry of any
aliens or of any class of aliens into
the United States would be
detrimental to the interests of the
United States, he may by
proclamation, and for such period as
he shall deem necessary, suspend
the entry of all aliens or any class
of aliens as immigrants or
nonimmigrants, or impose on the
entry of aliens any restrictions he may
deem to be appropriate.”
Trump v. HawaiiTrump v. Hawaii
8 U.S.C. 1152(a)(1)(A):
“no person shall . . . be
discriminated against in
the issuance of an
immigrant visa because
of the person’s race, sex,
nationality, place of birth,
or place of residence.”
Which zone?

27. Trump v. HawaiiTrump v. Hawaii
Lower courts found
Trump’s order contradicted
non-discrimination law
AND/OR
Was an improper use of
delegated power because
it was not supported by or
contrary to facts (arbitrary
and capricious).
Supreme Court
Congress gave President
broad power to keep
people out he deems to be
“detrimental to interests of
United States.”
Trump’s tweets aside, no
evidence of discrimination
Instead, decision was
based on factual findings.

28. Open Ended LawsOpen Ended Laws
Clean Air Act (1979) Example
Sought to decrease both stationary (industrial) and mobile air
pollution.
Created new agency: Environmental Protection Agency
Authorized extensive federal regulatory scheme to meet the
states goal.
The Debate:
Does this include going after pollution that contributed to
global warming?

29. Omnibus BillsOmnibus Bills
A law the covers diverse and unrelated topics.
Laws allocating money (budget laws) are often done in
this manner.
Example – National Defense Authorization Act
Set the budget of the Department of Defense
The 2016 version was 973 pages long.
It also authorized the Secretary of Defense to support the “construction
of roads and fences and installation of lighting to block drug smuggling
corridors across international boundaries of the United States.”
Does this allow Trump to build his wall?

30. The Framework BattlesThe Framework Battles
Whether:
President (agency) has
been given the power
President (agency) is
interpreting the statute
properly
President (agency) is
exercising power beyond
delegation of authority.
As Presidents push the
envelop → claims of
imperial presidency
increase.

31. Plenary PowerPlenary PowerPlenary PowerPlenary Power
Power granted solely to one branch in absolute terms.
Examples – power to declare war (Congress), power to spend
(Congress), presidential pardonspresidential pardons (Executive), Immigration
(Congress)
Result – courts will not interfere with exercise of power.
Because of the system of checks and balances, this is rarely
the case.