Powers of President

Delegation of Legislative Power example 2 (legislative veto) (congressional limits on the executive)

A delegation of authority to an executive agency to regulate broadcast licenses to the extent that "public interest, convenience, and necessity require" has been upheld. Nat'l Broad. Co. v. United States, 319 U.S. 190 (1943). Similarly, an administrative agency could set "just and reasonable" rates for natural gas sold in interstate commerce. FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). Certain powers, however, are nondelegable, such as the power of impeachment and the power to declare war.

Commander in chief (foreign affairs)

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.

Delegation of Legislative Power example 3 (legislative veto) (congressional limits on the executive)

Because there is almost no limitation on the ability of Congress to delegate to the executive and judiciary branches, an answer choice on the MBE indicating that Congress has "exceeded its power to delegate" is almost always incorrect.

Foreign affairs

Commander in chief; Treaties; Executive agreements; International affairs

Removal (appointment and removal of officials) (domestic power)

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. 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

Appropriation (congressional limits on the executive)

If Congress explicitly mandates an allocation, distribution, or expenditure of funds, the President has no power to impound those funds (e.g., refuse to spend them or delay the spending). The President is permitted to exercise discretion if the authorizing legislation so provides. Separation of powers questions often center on the President trying to impound funds appropriated by Congress. Remember that if Congress fails to mandate that the funds are to be allocated, distributed, or spent, then impoundment is not a separation of powers violation.

Congressional Limits on the Executive

Impeachment; Appropriation; Legislative veto;

Legislative veto examples (congressional limits on the executive)

In INS v. Chadha, 462 U.S. 919 (1983), a provision of law permitted either house of Congress to overturn a decision by the Attorney General granting an alien relief from deportation. The Supreme Court held such a one-house congressional "veto" of a matter delegated to the executive to be unconstitutional as violating the carefully wrought legislative procedures set forth in Article I, which require passage of legislation by both Houses of Congress (i.e., bicameralism) and sending to the President pursuant to the Presentment Clauses for his approval or return. Thus, the Court made clear that a two-house legislative veto would be equally unconstitutional.

Legislative veto (congressional limits on the executive)

It is unconstitutional for Congress to attempt a "legislative veto" of an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

Appointment example (appointment and removal of officials) (domestic power)

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. Buckley v. Valeo, 424 U.S. 1 (1976)

Authority as chief executive example (domestic power)

Military commission (i.e., tribunal) had no jurisdiction to proceed because the executive order authorizing the commission exceeded congressional limitations placed on the President to convene commissions. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863 (1952).; See Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

Domestic power

Pardon power for federal offenses; Veto Power; Appointment and removal of officials; Authority as chief executive; Duty to faithfully execute laws

Treaties (foreign affairs)

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. Constitution is superior to treaty. A treaty has same authority as an act of Congress; most recent controls, but not the same of a passed effectuating treaty. Self-executing treaty is binding on states and ratified one takes precedence over inconsistent state law.

Delegation of Legislative Power example 1 (legislative veto) (congressional limits on the executive)

The IRS has been given the power to collect taxes that are assessed under the Internal Revenue Code. Although Congress has determined the amount to be taxed, it has delegated to the IRS the power to determine how such taxes are to be collected. Almost any legislative delegation passes the "intelligible standards" requirement, so even broadly phrased standards have been upheld.

Executive agreements (foreign affairs)

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.

Removal example (appointment and removal of officials) (domestic power)

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. 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)

Powers of President Intro

Article II, Section 1 grants the "executive power," which has been interpreted broadly by the Supreme Court, and includes the power to enforce federal law and manage the executive branch. President has no power to make laws, but enforcement power includes the exercise of prosecutorial discretion. Presidents may also exercise control over agencies by issuing executive orders. Generally speaking, the President's authority is broader in the area of foreign affairs than in domestic matters.

Appointment (appointment and removal of officials) (domestic power)

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.

Duty to faithfully execute laws (domestic power)

Article II, Section 3 imposes on the President the duty to "take care that the laws be faithfully executed." Known as the "Take Care Clause," this section ensures that the President will enforce laws, despite disagreeing with them.

Impeachment (congressional limits on the executive)

Article II, Section 4 states: "The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The House of Representatives determines what constitutes "high crimes and misdemeanors" and may impeach (i.e., bring charges) by a majority vote. The Senate tries the impeached official, and a two-thirds vote is necessary for conviction.

Delegation of Legislative Power (legislative veto) (congressional limits on the executive)

Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "nondelegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate

International affairs (foreign 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.

Authority as chief executive (domestic power)

The scope of the President's power to issue executive orders and to govern domestic affairs is extensive but not clearly delineated. 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.

Pardon power for federal offenses (domestic power)

"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; also 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. The power may be exercised with respect to groups of people as well as individuals.

Veto Power (domestic power)

Once passed by both houses of Congress, a bill must be presented to the President. Upon presentment, the President has 10 days to act on the proposed legislation. If the President signs the bill, it becomes law. Article I, Section 7 also gives the President the power to veto any bill presented to him. 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 and still becomes law after 10 day period UNLESS Congress adjourned during that time then bill does not become law.