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

1. Slide 1
U.S. Constitutional LawU.S. Constitutional Law
Executive Power
Part I

2. Slide 2
U.S. GovernmentU.S. Government
See Handout on StudIP
Notice these offices
inside the White House

3. Slide 3
Executive BranchExecutive Branch

4. Slide 4
AgenciesAgencies
Exist inside Executive Departments or
independently.
Broad Definition – every non-military entity other
than courts and legislature.
Types: regulatory and welfare.
States have separate and distinct agencies.
Possible Powers → rule-making, enforcement
and/or adjudication powers.
What about separation of powers?

5. Slide 5
Independent AgenciesIndependent Agencies
Exist “outside” of the Executive Branch
Created by Congress to be independent
Usually headed by a commission or board
Appointed by President, confirmed by Senate, serving
staggered terms.
President can remove commissioners “for cause.”
Examples:
See bottom of government organization handout

6. Slide 6
Creation of AgenciesCreation of Agencies
Created by Congress via enabling statutes
Describes agency's structure, purpose and defines
powers = delegation of power.
The delegation of power must specify:
Who and what are the subject to the power.
The harm to be prevented.
Guidance as to how the prevention will be carried
out = what power(s) the agency has.

7. Slide 7
Example of Agencies
within a Department
Example of Agencies
within a Department
Department Of
Interior
Agencies

8. Slide 8
Qualification to be PresidentQualification to be President
Natural born citizen
What does this mean?
What the difference
between natural born
and naturalized?
For a more in-depth
discussion of this see
the background
reading on StudIP.

9. Slide 9
Election of PresidentElection of President
Not directly elected
Electoral College –
see here for moresee here for more
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 voters by law.
https://www.youtube.com/watch?v=W9H3gvnN468
Four year term
Can only be elected twice
Changed by 22nd AmendmChanged by 22nd Amendm
entent

10. Slide 10
Abuse of PowerAbuse of Power
What happens if President/Executive Officer
abuses power or engages in wrongdoing?
Can they be investigated? If so by whom?
Must they cooperate with the investigation?
Can they be sued in court?
Can they be removed?

11. Slide 11
Cliqr SurveyCliqr Survey
Should the President be forced to make public
confidential discussions he has with his
advisors?
Should Congress have the power to hire a
“special prosecutor” to investigate the President?
Should the President be forced to defend a civil
lawsuit while in office?
Should the President have criminal immunity
while in office?

12. Slide 12
Executive PrivilegeExecutive Privilege
Executive Privilege - an “implied power”
ability to keep secret conversations with or
memorandum to or from advisers
Court says President has this power.
However this is not absolute – U.S. v. NixonU.S. v. Nixon
Vice-President and Executive Officers can also
exercise this power
As long as they are working at request of President.
Cheney v. United States District Court (2004)

13. Slide 13
U.S. v. NixonU.S. v. Nixon
Facts:
President Nixon
refused to give special
prosecutor taped
conversations he had
in the Oval Office.
President is target of
investigation.
Holding: Presidents
have “executive
privilege”
BUT this cannot be
used to interfere with
criminal investigations

14. Slide 14
Can the President be
Investigated?
Can the President be
Investigated?
By the Department of
Justice
Attorney General (AG)
can appoint special
counsel.
Independent
investigation?
President could order AG
to fire special counsel.
Saturday Night MassacreSaturday Night Massacre.
Special counsel
appointed by
Congress?
Upheld in Morrison v.
Olson.
Law said if AG fails to
do so after 90 days,
judges on the DC
Court of Appeals can
appoint counsel.

15. Slide 15
U.S. v. MorrisonU.S. v. Morrison
Issue:
Executive Branch given power to prosecute
But here Congress starts the investigation
Separation of powers violation?
Court held no separation problem because:
Special Prosecutor is inferior officer; these don’t
always have to be appointed by Executive Branch
Court had no control over special prosecutor.
AG (Executive Branch) could still fire prosecutor.

16. Slide 16
Suing the President:
Civil Immunity
Suing the President:
Civil Immunity
Cannot be sued for
money damages for
official conduct
undertaken while in
office.
Can be sued in federal
court for conduct prior
to taking office.
see Clinton v. JonesClinton v. Jones.
What about in state
court?
See article in StudIP
(“Trump Civil
Immunity”)

17. Slide 17
Can the President be
Charged with a Crime?
Can the President be
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.

18. Slide 18
RemovalRemoval
Two step process:
Impeachment (majority
vote of House)
Article I, Section 2
Conviction (2/3 of Senate)
Article 1, Section 3
“Treason, Bribery, or
other high Crimes and
Misdemeanors”
Article II, Section 4
What is a high crime and
misdemeanor?

19. Slide 19
Lines of SuccessionLines of Succession
The 25th AmendmentThe 25th Amendment
Vice President becomes
President upon death or
resignation of President.
Sets forth how vacancy
of Vice-President will be
filled.
Appointment by President,
consent by majority of
BOTH houses.
Allows President to
temporarily relinquish his
office.
Allows for forced
temporary removal.
President Johnson, a heart attack survivor
& seated behind him 1st
in line Speaker of
the House John McCormack (71) & 2nd
in line
President Pro Temp Carl Hayden (88)

20. Slide 20
Temporary RemovalTemporary Removal
Majority of Cabinet and Vice
President votes to temporarily
remove President.
President can then respond to
President Pro tempore of
Senate that he is fit and able to
function as President.
If Vice President and majority
of Cabinet still claim President
is not able, then it takes 2/3
vote of BOTH houses to
temporarily remove President.
25th Amendment, Section 4