THE POWERS OF THE PRESIDENT

Commander in Chief

1. Commander in Chief Although the President is the commander in chief of the military, only Congress may formally declare war. The President may take military action without a declaration of war in the case of actual hostilities against the United States. Congress may in turn limit the President's military activities through exercise of its military appropriation (i.e., funding) power. The questions of whether and to what extent the President may deploy troops overseas without congressional approval is unsettled; presidents routinely do so, and Congress routinely asserts its authority to approve the deployment. The courts have generally left the question to the political branches.

Foreign Affairs

1. Commander in Chief 2. Treaties 3. Executive Agreements 4. International Affairs

Pardon Power for Federal Offenses

1. Pardon Power for Federal Offenses Article II, Section 2 provides the President with the power to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power applies only to federal cases; the President may not grant pardons for state crimes. The pardon or reprieve may be granted at any time after commission of the offense. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867). The pardon or reprieve may be made subject to conditions and may take or encompass various lesser acts, such as remission of fines, penalties, and forfeitures or commutation of sentences. Ex parte William Wells, 59 U.S. (18 How.) 307 (1856). The power may be exercised with respect to groups of people as well as individuals. James Carter, Executive Order 11967, issued Jan. 21, 1977 (amnesty for Vietnam War draft dodgers).

Domestic Power

1. Pardon Power for Federal Offenses 2. Veto Power 3. Appointment and Removal of Officials 4. Authority as Chief Executive

Treaties

2. Treaties Pursuant to the Treaty Clause (Art. II, Sec. 2. Cl. 2), the President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate. a. Effect of a treaty The Constitution is superior to a treaty, and any conflict is resolved in favor of the Constitution. Reid v. Covert, 354 U.S. 1 (1957). A treaty has the same authority as an act of Congress; should the two conflict, the one most recently adopted controls. A non-self-executing treaty (one that requires legislation in order to implement its provisions) does not have the same force of law as an act of Congress until legislation is passed effectuating the treaty. In the absence of implementing legislation by Congress, the President does not have the authority to make a non-self-executing treaty binding on the states. Medellin v. Texas, 552 U.S. 491 (2008); Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., conc.). A ratified treaty takes precedence over any inconsistent state law. Missouri v. Holland, 252 U.S. 416 (1920).

Veto Power

2. Veto Power Article I, Section 7 gives the President the power to veto any bill presented to him (i.e., passed) by Congress. Upon presentment, the President has 10 days to act on proposed legislation. If the President signs the bill, it becomes law. The President may also veto the bill by sending it back, with objections, to the house in which it originated. Congress may override the veto and enact the bill into law by a two-thirds vote in each house. A third option is that the President does nothing at all. If Congress is still in session at the end of the 10-day period, the bill becomes law without the President's signature. If Congress has adjourned during that time, however, the bill does not become law, because the President could not have returned it to its originating house. The President's failure to act on a bill in this situation is known as the "pocket veto" and cannot be overridden. The President may not exercise a "line item" veto, refusing part of a bill and approving the rest, because it violates the Presentment Clause. Clinton v. City of New York, 524 U.S. 417 (1998).

Appointment and Removal of Officials

3. Appointment and Removal of Officials a. Appointment Article II, Section 2 authorizes the President, with the advice and consent of the Senate, to appoint all "officers of the United States," including ambassadors and Justices of the Supreme Court. Congress may, however, delegate the appointment of "inferior" officials to the President alone (i.e., without Senate approval), the heads of executive departments, or the courts. "Inferior" officials are those supervised by Senate-confirmed appointees. Congress may not itself appoint members of a body with administrative or enforcement powers; such persons are "officers of the United States" and must be appointed by the President. Buckley v. Valeo, 424 U.S. 1 (1976) (makeup of the Federal Election Commission invalidated because a majority of its members were to be appointed by the President Pro Tem of the Senate and the Speaker of the House; the FEC's tasks were executive in nature, therefore, Congress had no right to appoint such federal officers). b. Removal The Constitution says nothing about the President's power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval). Congress may not shield appointees from removal by the President by imposing a multi-tiered system in which persons at each level may be removed from office only for good cause. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010) (holding 15 U.S.C.S. §§ 7211(e)(6) and 7217(d)(3) unconstitutional and invalid because the multilevel protection from removal of members of the Public Company Accounting Oversight Board was contrary to Article II's vesting of the executive power in the President and contravened the Constitution's separation of powers). Federal judges, however, are protected under Article III, Section 1, which provides that they may "hold their offices during good behavior"; they may be removed only by impeachment.

Executive Agreements

3. Executive Agreements The President has the power to enter into executive agreements with foreign nations (e.g., reciprocal trade agreements) that do not require the approval of two-thirds of the Senate. Although not expressly provided for in the Constitution, executive agreements may be made, without congressional authorization, pursuant to the President's authority over foreign affairs. Conflicting federal statutes and treaties take precedence over executive agreements, but executive agreements take precedence over conflicting state laws.

Authority as Chief Executive

4. Authority as Chief Executive The scope of the President's power to issue executive orders and to govern domestic affairs is extensive but not clearly delineated. The best-known exposition holds that the President's authority varies with the degree of congressional authorization of the action. Thus, when the President acts: i) With the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid; ii) When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government; and iii) When Congress has spoken to the contrary, presidential authority is "at its lowest ebb," and the action is likely invalid. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military commission had no jurisdiction to proceed because the executive order authorizing the commission exceeded congressional limitations placed on the President to convene commissions).

International Affairs

4. International Affairs The President represents and acts for the United States in day-to-day international affairs. In addition to appointing and receiving ambassadors, the President has the exclusive power to recognize a foreign government. Zivotofsky v. Kerry,576 U.S. ___, 135 S. Ct. 2076(2015).

THE POWERS OF THE PRESIDENT

Article II, Section 1 grants the "executive power" to the President. The extent of this power has been interpreted broadly by the Supreme Court, which has emphasized that the President has no power to make laws but does have the power to enforce them; this enforcement power includes the exercise of prosecutorial discretion. Davis v. U.S., 512 U.S. 452 (1994). Generally speaking, the President's authority is broader in the area of foreign affairs than in domestic matters.