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FEDERAL EXECUTIVE POWER

FEDERAL EXECUTIVE POWER. contest between Fed executive and legislature… Separation of powers: division of authority w/in federal government versus Federalism concerns in prior cases: state versus federal power. Basic Issues. we'll look at (you should know & understand):

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FEDERAL EXECUTIVE POWER

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  1. FEDERAL EXECUTIVE POWER contest between Fed executive and legislature… Separation of powers: division of authority w/in federal government versus Federalism concerns in prior cases: state versus federal power

  2. Basic Issues we'll look at (you should know & understand): • defining executive power including implied & claims of “inherent” authority; • executive privilege (communications/ lawsuits); • foreign affairs powers (including treaties) • impeachment

  3. Article II Text: defines presidential powers, including checks on Congress • Sec. 1, Clause 1: The executive Power shall be vested in a President of the United States of America.…What is “executive power”? • Note Sec. 3….he shall take Care that the Laws be “faithfully executed” the primary job is to implement laws as intended by Congress….as distinguished from making laws …primary mechanisms for enforcement via executive branch agencies, fed. law enforcement (FBI/ DOJ) • But NB: delegation of power & regulatory state • Inherent discretion in implementation (use of resources & interpretation) • Signing statements and express disavowals…especially enforcement of legislative policy via administrative agencies

  4. Text of Article II: includes enumeration of other powers and checks • Sec. 2, Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; • Sec. 2, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, …. • Note Sec. 3…shall receive Ambassadors and other public Ministers • Veto power

  5. Implicit authority…means related to the express powers and practicalities • Foreign Affairs • Curtis Wright: “sole voice” • But Congress clearly has competing authority under CC, War, regulation of armed forces, and the purse • National Security • Distinction between Implicit vs “Inherent” and its significance • Wiretaps, Terrorism, Torture & Detention examples of claim for inherent authority

  6. Separation of Powers: Checks & Balances • President (Art. II) vs legislature (Art. I) • Enforce the law  make laws • Veto override • Commander  declare war/ $ • Appointments  senate confirms • Make treaties  2/3 senate “advise & consent” • Foreign affairs  regulate trade, etc Frequent tension between legislative & executive authority within a system of checks and balances

  7. Judicial Role in Separation of Powers Conflicts • Look for “Political Question” Non-justiciability common in questions of war, national security & foreign affairs • Pres. Powers “fluctuate depending on coincidence w/ Congressional" power 3 categories as FRAMEWORK for analysis: (Jackson Triology)   (1) “highest ebb” pursuant to express or implied Congressional Authorization = whole of federal power….presumption, widest judicial latitude (2)Twilight zone > neither authorized or denied = pres. own independent powers alone…“twilight”? (Concurrent power, Congressional silence, practice, unique circumstances = “Contemplate imponderables”) (3) Lowest Ebb executive action incompatible w/expressed or implied Congress Will = direct conflict between Congress & Executive power  only sustain executive if Congress “disabled” …in essence a contest b/w executive and legislative authority over subject

  8. Executive Privileges & Immunities Note: Speech & Debate Clause provides for immunity for members of Congress relating to official legislative duties (scope is critical) Qualified Privilege for Confidential Communications -- generalized need vs national security, military, foreign affairs; balanced against interests of litigants (demonstrated particularized need in criminal trial) and justice Absolute immunity from civil liability relating to official duties

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