The Executive Branch

Article 2 of the Constitution provides that all  Executive Power shall be vested in the President  (Vestature Clause) and gives him the following responsibilities:

  • Commander in Chief of the Armed Forces
  • Grant Reprieves and Pardons (except for Impeachments)
  • Make Treaties (w/advise and consent of the Senate)
  • Appointments (w/advise and consent)
  • Take care the laws are faithfully executed (Take Care Clause)


Case Law: 

  • Youngstown Sheet & Tube v. Sawyer: Even when acting in a national security capacity, the President must respect the separation of powers doctrine.
    •  Truman attempts to seize steel mills after workers go on strike in order to keep providing munitions to the troops in the Korean war.
    •    National Security: has there been an exercise of power to protect the nation?
    •    2 areas of Presidential action in National Security:
      • Theater of War:
        • Congress can not tell the president how to fight a war. Once the war has congressional authorization the President has the power to win the war.
        • Majority in YT d/n believe the theater of war could extend to US steel mills. Decent accepted that the theater of war was the whole world.
      • Genuine Emergency:
        • President has power to protect US citizens and the federal function.
        • If Congress has not made their will known who decides what an emergency is – unclear
    •  Jackson’s Tiers of Presidential Power: Presidential power is not fixed but fluctuates depending on its disjunction or conjunction with congressional power.
      • Tier 1: express or implied congressional support
        • Presumed constitutional. à acting on the power of the ‘government’, not just the executive.
        • Limits: if the constitution prohibits it.
      • Tier 2: Zone of Twilight – no congressional action
        • ‘In this area any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.’
        • In an emergency congressional inaction invites presidential action.
      • Tier 3: Acts contrary to the known will of Congress
        • President must be acting on his article 2 powers alone. (ie: appoint ambassadors, pardons, commander in chief)
    •   Frankfurter’s Gloss: The Constitution d/n create a ridged distribution of power, it creates a framework. Each branch interprets the constitution – the way they have always acted means something.
      • Past Action needs to be:
        • Systematic
        • Unbroken
        • Never before questioned
    • Gives rise to a constitutional common law or custom that gives meaning to the text of the Constitution. 
  • Dames & Moore v. Regan: Zone of Twilight: Congressional inaction does not mean it disapproves. By looking at the ‘historic gloss’ on presidential power, Congressional acquiesce can be implied.  
    • The President makes an agreement with the Iranian government to have hostages released. The agreement nullified claims citizens had in US courts against Iran.
    •  “Congress c/n anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he may act. Such failure of Congress specifically to delegate authority d/n, especially in the areas of foreign policy and national security, imply congressional disapproval of action taken by the Executive.”
    •  Draws a distinction b/t war and foreign affairs.
      • Here: Historic Gloss – long history of Presidents settling claims to resolve major foreign policy disputes.
  • US v. Curtiss-Wright Export Co.:  The President is the sole organ of the government in the field of international relations.
    •   Can congress delegate lawmaking power to the President?
      • Domestic – No, its unconstitutional
      • Foreign Affairs – yes
        • President has broad FA powers implicit in Art II that come from the country’s status as a state in the international community.
        • He is given deference in FA b/c he is in a better position to know the conditions and has more sources of information
    •     Here: Congress gave the president the power to issue an executive order prohibiting the sale of arms to Chaco.
      • Court found that the primary purpose was a foreign affairs purpose t/4 the delegation of power was ok.
      • The criminal charges arising from the order were second order consequences.
  • The Prize Cases: When war is thrust upon the nation the president has a duty to meet force with force, even with out congressional authorization.
    • Power derived from his Commander in Chief powers.
    •  Once we are in a war the president can act under his constitutional power as well as power from the jus belli (law of war).
      • War does not have to be formally declared. (can be de facto or de jure)
  • Little v. Barreme: When Congress chooses to limit the scope of an authorized war, the president must act only within the boundaries set by congress.   
    •  Congress authorized the seizure of any ship going to a French port. The president extended this to allow seizure of ships going to and coming from French ports. The navy seized a Danish ship coming from a French port. The caption of the US ship was held liable for damages.
    •  Congress’s war powers include the authority to place limitations on war (set the scope)
      •  “The President, not congress, makes all day-to-day tactical decisions in the combat deployment of armed forces. Indeed, even when it ends a use of force by cutting off funds, Congress c/n constitutionally interfere with the Commander in Chief’s tactical decision for the safe withdrawal of the armed forces. … When Congress gives the President the authority to conduct war, he or she must conduct it within that authority.”
    • Congress must be clear in its restrictions. Any uncertainty is resolved in favor of the President.
      • The power of the purse is the ultimate trump card
  • In re Neagle: The President has the power to protect US citizens.
    • Rescue power – power to protect citizens abroad
    •  Power to protect the federal function – domestic power – narrowly defined/ linked to the ‘take-care’ clause.
      • Used here when the president assigned a US Marshal to protect a federal judge who was riding the circuit in the states.

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