Which is not a power that the president was given within the Constitution?

In Bowsher, as a result of Congress’ attempt to reduce federal budget deficits, Congress gave the Comptroller General certain executive powers. Previous legislation already afforded Congress the power to remove the Comptroller for various reasons, but because Congress now bestowed on that position certain executive powers, the Court struck down the relevant provision of the act. So, Bowsher tells us that Congress may not retain the right to remove for any cause any executive officer. This power remains with the executive branch and the President. 

EXAMPLE: Congress decides that its power to declare war would be compromised if our Secretary of Defense does not meet certain standards of performance. Congress therefore passes a statute requiring the Secretary of Defense to appear before Congress each year and explain what he has done to improve our nation’s readiness for time of war. The statute provides that should the Secretary fail to make satisfactory improvements in any year, Congress may vote to remove the Secretary. Because the Secretary of Defense is a Cabinet posting under the President as Commander-in-Chief of the armed forces, the statute would be an unconstitutional exercise of power.

Impeachment

The President and other executive officers, however, may be removed from office by Congress through the power to impeach. Impeachment itself does not remove one from office. Instead, the House of Representatives votes to impeach. If the vote passes, a Senate trial is held, and only if the Senate convicts will the officer be removed from office. The House vote requires a simple majority to pass. The Senate conviction requires a 2/3 majority vote to pass.

While Congress may impeach and thereafter remove a President, the President does enjoy certain immunities from prosecution. Regarding civil suits seeking money damages for any Presidential acts while in office, the President is absolutely immune. InClinton v. Jones, 117 S. Ct. 1636 (1997), it was made clear that the President enjoys absolutely no immunity for non-Presidential acts. Not only was the President subject to suit from Paula Jones, the Court refused to grant him even temporary immunity which would have allowed the President to put off his defense until his term of office was complete. The rationale behind the immunity – of ensuring that the President need not fear personal liability for acts of office - was entirely inapplicable according to the Court. Acts prior to taking the office of the Presidency are therefore also not included in the President’s shield from suit.

EXAMPLE: Suppose a President, years before taking office, is involved in a real estate deal in his home state. While in the office of the Presidency, facts come to light indicating that he may have committed fraudulent acts as part of the transaction. Although defending himself from the suit will take away from the time he can dedicate to his Office, he is neither immune from suit nor able to postpone adjudication.

The President does have an executive privilege covering Presidential papers and discussion, which affords further protection and the ability to refuse disclosure, although this privilege will on occasion yield to other overriding governmental interest. InU.S. v. Nixon, 418 U.S. 683 (1974), we are provided with the only Supreme Court decision that draws boundaries for this privilege. There, it was found that whether the privilege applies or not is decided by the Court, not the President, and that because of the need to fully develop the facts relevant to a criminal trial, the privilege was outweighed by the need for full factual disclosure in that case and disclosure could not be avoided.

Power to Pardon

Finally, Article II, Section 2, clause 1 grants the President “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This means that the President may pardon someone who is accused or convicted of a federal crime, but the President holds no such power regarding violation of state law or civil, as opposed to criminal, offenses. 

EXAMPLE: Frank grew up with the man who is now President of the United States. Although they weren’t close growing up, Frank is sure the President will remember him and help him. After all, Frank helped him out of that sticky situation in high school, without which the President probably never would have been able to get his diploma. The help Frank needs involves a felony conviction for aggravated assault and rape in Kansas for which Frank feels he has served enough time. Somehow he manages to get the President on the phone to personally request a pardon. Needless to say the President is likely more than happy to tell Frank that he would help him if he could, but alas he doesn’t have the power to pardon anyone convicted of a state crime. “Call me when you get out,” he says, “we’ll do lunch.”

Foreign Policy

In addition to bestowing upon the President certain powers regarding domestic affairs, Article II grants the President broad discretion over foreign policy. The two most important means of establishing foreign policy are treaties and executive agreements, and these operate differently with respect to state and federal laws and the Constitution.

Article II, Section 2, clause 2 grants the President “Power, by and with the Advice and Consent of the Senate, to make Treaties” pending approval when ratified by a 2/3 majority vote of the Senate.

Executive Agreements are not Constitutionally authorized, but are nonetheless agreed to be within the powers vested in the President. The most immediately apparent difference between a treaty and an Executive Agreement is that Executive Agreements do not require Senate approval, as that requirement stems from the Constitutional grant of power to enter into a Treaty. This is not a dangerous sidestep around the Constitution, as it may first appear. Crucial differences exist between the power and force of a treaty versus that of an Executive Agreement. These differences are examined in the chart at the end of this Section:

What is the advantage in the President seeking Senate approval and entering into a treaty rather than an Executive Agreement? Only a treaty can surmount any existing federal law, and it is precisely that power of the treaty that makes Senate approval necessary.

Note that in no case will state law interfere with the terms of either a treaty or an Executive Agreement. Were it otherwise, the states could effectively invalidate the President’s power to conduct foreign policy, as any agreements with foreign nations with which a state disagreed could be essentially nullified by the individual states.

EXAMPLE: The President enters into a treaty with China, which the Senate ratifies. The treaty provides, in part, that goods exported from China to the U.S. will be taxed at a particularly low import tax rate, in exchange for which goods shipped from the U.S. to China will enter China’s stream of commerce without having any import tax imposed. Suppose it would be possible for a number of states to now pass laws that would impose hefty import taxes on Chinese goods. The U.S. as a whole would not be living up to its end of the bargain, and the President’s ability to enter into agreements with foreign nations would be seriously compromised.

In addition to the power to enter into treaties and Executive Agreements, the President is named “Commander in Chief of the Army and Navy” by Article II. So while only Congress has the authority to formally declare war, controversy abounds regarding the President’s ability to commit armed forces abroad in the absence of such a Congressional declaration.

Some areas are clear, such as the authority for the President to commit our forces to defend against a sudden attack. See Prize Cases,67 U.S. 635 (1863). It is also clear that Congress may delegate its powers to the President in advance, to be exercised at the President’s discretion, so long as the delegation is not overly broad. It is not clear, however, just what are the President’s powers to commit to a preemptive strike prior to an anticipated enemy attack or to commit troops to defend our allies against a sudden attack.

Finally, the President has the power to veto any act of Congress. An act vetoed by the President may still be passed into law only by a 2/3 majority vote of each house of Congress, whether the President vetoed the bill actively or by a pocket veto.

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