Executive Power US

9 Key excerpts on "Executive Power US"

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  eBook - PDF

  Emergency Presidential Power

  From the Drafting of the Constitution to the War on Terror

  • Chris Edelson(Author)
  • 2013(Publication Date)
  • University of Wisconsin Press

    (Publisher)

  Just as the courts and Congress have their spheres of power, so too does the president, and he or she possesses plenary power within the executive sphere. 12 In this view, the president may even possess independent and unilateral authority to interpret the Constitution in defining the limits of presidential power. 13 As one scholar put it, the unitary executive theory asserts that “presidents have sole and complete control over the executive branch” and that “the other branches of government may not interfere with presidential actions arising from [the president’s use of ] executive powers.” 14 The unitary executive theory is a way to justify emergency presidential power: the Bush administration applied this theory in the context of the war on terror to justify presidential power used to defend the nation. We’ll begin, however, by considering the general formulation of the unitary executive theory before we consider how it has been used to justify specific applications of presidential power. 15 The idea of a unitary executive takes as its starting point Article II of the Constitution, most centrally its Vesting Clause, which provides that “[t]he executive Power shall be vested in a President of the United States of America.” 16 Advocates of the unitary executive theory contrast this language with Article I’s Vesting Clause, which provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” 17 They reason that the Framers of the 127 emergency presidential power at its zenith Constitution chose their words carefully and that, therefore, it is signifi- cant that they used more limiting language in Article I’s Vesting Clause. One consequence, in this view, is that Congress is limited to only those legislative powers described in Article I. By contrast, since Article II’s Vesting Clause does not contain limiting language, the executive must be assigned all the executive power.

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  American Government

  Political Development and Institutional Change

  • Cal Jillson(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  10 THE PRESIDENT Executive Power in a Separation of Powers Regime Focus Questions and Learning Goals

  Q1   What historical examples of executive power did the Founders consider as they shaped the American presidency?

  Q2    How did the Founders limit the powers that they placed with the president?

  Q3    What forces account for the growth of executive power over the course of American political history?

  Q4    Why does the president have an easier time in shaping and implementing foreign policy than he does domestic policy?

  Q5    Should we be concerned that White House staff members have replaced members of the cabinet as the president’s closest advisers?

  THE UNITARY EXECUTIVE THEORY OF PRESIDENTIAL AUTHORITY Article II, section 1: “The executive power shall be vested in a President of the United States of America.”

  While the constitutional origins of presidential authority are clear, centering on the clause above, the scope and limits of that authority are hotly contested. Scholars have long noted that while the powers explicitly enumerated in the Constitution’s Article II are few—commander-in-chief, pardon power, and, with the advice and consent of the Senate, broad appointment powers—the president has additional unenumerated powers.

  Moreover, students of executive power all the way back to John Locke (1632–1704) have argued that kings and presidents may have to act outside the law or even in contravention of the law when great dangers threaten. The “inherent powers” of the executive, they argue, may require bold action, even action that would be illegal under normal circumstances, to confront dire threats. Officials of the George W. Bush administration argued for an even broader “unitary executive” theory of presidential authority. The unitary executive theory holds that the president is the sole authority in the executive branch and any attempt to limit that authority is unconstitutional. This view also has been popular inside the Trump White House.

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  The Supreme Court and American Democracy

  Case Studies on Judicial Review and Public Policy

  • Earl Pollock(Author)
  • 2008(Publication Date)
  • Greenwood

    (Publisher)

  If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conven- iences of the present emergency. Article II provides that the President “shall take Care that the Laws be faithfully executed.” But the power to execute the laws starts and ends with the laws Congress has enacted. We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President might use the same power to prevent a wage increase, to curb trade-unionists, to regiment labor as oppressively as the steel industry thinks it has been regimented by this seizure. Jackson, concurring: We may well begin by a somewhat oversimplified grouping of practical situations in which a President may doubt, or others may challenge, his powers. Executive Powers 287 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. If his act is held unconstitutional under these circumstances, it usually means that the federal government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

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  American Constitutional Law 8E, 2-VOL SET

  2-VOLUME SET

  • Ralph A. Rossum(Author)
  • 0(Publication Date)
  • Routledge

    (Publisher)

  no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. . . . If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. . . .

  Art II., § 1, cl 1 of the Constitution provides: The executive Power shall be vested in a President of the United States. . . . [T]his does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void. . . .

  The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two Branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts—perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power—or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982), that "[t]he inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art III." We should say here that the President's constitutionally assigned duties include complete

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  Presidential Constitutionalism in Perilous Times

  • Scott M. Matheson Jr., Scott M. Matheson(Authors)
  • 2009(Publication Date)
  • Harvard University Press

    (Publisher)

  United States that “[t]he executive power was given in general terms . . . and was limited by direct expressions where limitation was needed.” 82 Hamilton posited the advantages of an “energetic Executive” in matters of national security. 83 But he also explained that while the Commander in Chief would command the “military and naval forces,” the President’s powers would be “inferior” to those of the King of Great Britain and maybe even less than those of some state governors because Congress is delegated authority to declare war and to raise and regulate “fleets and armies.” 84 The Vesting Clause frequently is the beginning point for advocates of broad executive power, but its open-ended nature gives no direction on what powers the President has and, therefore, no guidance on reconciling the need for an effective executive with balanced democratic government. In addition to the Vesting Clause, other constitutional provisions delegate foreign policy and national security powers to the President: “The Presi-dent shall be Commander in Chief of the Army and Navy”; 85 “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties”; 86 and “[H]e shall take Care that the Laws be faithfully exe-cuted.” 87 These provisions are recognized as textual support for the Presi-dent to exercise wide powers in foreign affairs. 88 They reflect the Framers’ intent and the constitutional design to bestow the President with powers to execute defensive and offensive actions quickly and decisively to protect 18 Presidential Constitutionalism in Perilous Times the country. Established historical practices have also endowed presidents with powers that would not necessarily be gleaned from the written text. 89 The leading Supreme Court statement of executive supremacy was Jus-tice George Sutherland’s opinion for the Court in United States v.

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  Lincoln's Constitution

  • Daniel A. Farber(Author)
  • 2011(Publication Date)
  • University of Chicago Press

    (Publisher)

  23 As we have seen, the text and history of Article II fail to offer decisive guidance regarding presidential power (even for those inclined to take it). The result has been a long debate through the course of our history about presidential authority during a crisis. At one extreme, Woodrow Wilson wrote (as a professor, not as president) that the Framers “seem to have thought of the President as what the stricter Whig theorists wished the king to be: only the legal executive, the presiding and guiding authority in the application of law and the execution of policy.” At the other ex-treme, Richard Nixon claimed that the president had unlimited power to take actions on grounds of national security or a “threat to internal peace and order of significant magnitude.” Although perhaps an unfortunate spokesman for this view, he did not speak merely for himself. In survey-ing these debates, scholars have distinguished five main arguments for Presidential Power { 127 inherent executive authority. Each has both appealing features and signifi-cant shortcomings. 24 The first argument for extensive crisis authority posits the existence of extraconstitutional powers, vested in the president not by the Constitution but by the very nature of his position as chief executive of a nation. If there are essential powers that go with nationhood and cannot be effec-tively exercised by other organs of government, then the mere act of cre-ating a nation might be thought to convey these powers, without the need for any specific constitutional language. Locke is often cited as support for this doctrine because he argued that the executive had inherent power to take steps to preserve society. This approach seems to be in tension with the whole idea of a written Constitution, at least as applied to domestic matters rather than foreign policy. It also begs the question of just what specific executive prerogatives are inherent in the nature of things.

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  Executive Power in Theory and Practice

  • H. Liebert, G. McDowell, Terry L. Price, H. Liebert, G. McDowell, Terry L. Price(Authors)
  • 2012(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  To be sure, many see few problems and several clear advantages in these efforts to broaden and deepen the scope of presidential activities and policy guidance. As numerous scholars have commented, the vest- ing clause in Article II of the Constitution explicitly mentions the office of the presidency, highlighting that the institution exists apart from its temporary occupant. 4 Moreover, proponents of executive power have long justified the unitary presidency by contending that recognition of presidential responsibility for, and control over, the executive branch enhances the president’s accountability and policy effectiveness. 5 The Brownlow Committee’s familiar entreaty that “the president needs help” still rings true for those worried about the unrelenting demands on chief executives and the complexity and volatility of the issues they confront. 6 The need for dispatch and energy in times of war and national emergency only amplifies such arguments. Even so, this professionalized—indeed, collectivized—executive raises legitimate concerns. 7 First, there are potential consequences for the separation of powers. Clearly, presidents as “first movers” can change the focus of policy debate by taking initial steps (e.g., issuing national security directives, committing troops, proposing legislation in congressional messages or State of the Union addresses) and then leave it to other branches of government to undo or respond to their initiatives. By initiating the National Security Agency’s surveillance program put in place after the September 11th attacks, revealed pub- licly in James Risen and Eric Lichtblau’s December 16, 2005 article in the New York Times, 8 for instance, President George W. Bush chal- lenged legislative authority; however, Congress ultimately authorized his actions in 2008.

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  The United States Constitution

  Questions and Answers

  • John R. Vile(Author)
  • 2013(Publication Date)
  • ABC-CLIO

    (Publisher)

  The Supreme Court has addressed a number of cases since the terrorist attacks against the United States on September 11, 2001, involving the rights of individuals accused of terrorist actions. Does the president have the power to convene both houses of Congress? Yes. This power was more important in the early history of the nation when Congress did not meet throughout the year, as, for all practical pur- poses, it now does. If the two houses of Congress disagree on when they should adjourn, who has power to resolve this controversy? The president is authorized to do so. Who is responsible for receiving ambassadors and other foreign representatives? The president is. This highlights the president’s role as chief of state. Who is responsible for seeing that U.S. laws are faithfully executed? The president is. This is why the presidency is referred to as the head of the executive branch. What does the executive power involve? This responsibility gives the president some discretionary power. In the case of In Re Neagle (1890), the Court ruled that a president can exercise certain powers that the Constitution does not specifically men- tion (in this case, appointing a marshal to protect a justice of the U.S. Supreme Court). Who is responsible for commissioning officers of the United States? The president is. Article II: The Executive Branch 95 SECTION 4: IMPEACHMENT Which officers of the government may be removed after being convicted of an impeachable offense? Article II, Section 4 specifies that “the President, Vice president, and all civil Officers of the United States” are subject to such removal. Civil of- ficers would include cabinet officers and judges but not members of Con- gress, who are subject to expulsion by a two-thirds vote of other members of their house. How many grounds for impeachment does the Constitution specify? It specifies three. They involve conviction of treason, bribery, or other high crimes and misdemeanors.

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  Crown and Sword

  Executive power and the use of force by the Australian Defence Force

  • Mr Cameron Moore(Author)
  • 2017(Publication Date)
  • ANU Press

    (Publisher)

  356 Davis v Commonwealth (1988) 166 CLR 79, 93. 77 1 . WHAT IS EXECUTIVE POWER? perhaps rather than being a source of power in itself, is actually a general description for power exercised by the executive branch of government, as it derives from several sources. From this assessment of the sources of the executive power of the Commonwealth, and an appreciation of the theory of executive power as being able to respond to Fortuna, this book will argue that its limits are as follows: 1. The federal structure of the Constitution . Executive power cannot alter the federal character of the Constitution ; 2. The separation of powers itself. Executive power cannot normally be the basis for an exercise of the powers of the legislature or judiciary; 3. Following point 2, relevant legislation (although statutory grants of power are mainly relevant to this book as a guide to the limit of executive power); 4. Military subordination to the civilian government (which Chapter 2 will consider but which follows from the principles considered in this chapter); 5. Necessity—the above limitations can temporarily be overcome by necessity. Where necessity requires, a particular executive power can provide power where no other power is available, but only for the period of time required to meet that need. Where Parliament has provided the same power—that is, ‘covered the field’—through legislation, then necessity would only justify action where the prerogative power (or possibly nationhood power) in question inherently concerned extraordinary circumstances. It would be necessary to look to the nature of such prerogative powers as those with respect to martial law, war or internal security, or possibly nationhood power as well in respect of internal security, to determine when to rely upon them instead of statutory power; 6.

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