Con Law - The Powers of The President - The Executive Branch on the MBE and MEE

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Curiously, an area of weakness that I discover my students have in/with the subject of Con Law is the area of law known as the “Federal Powers” aka the power of the president, Congress and the Supreme Court.  This makes sense, as most people pay particular attention to equal protection, due process, the 1st Amendment, the Commerce Clause, etc. and rightly so!  Therefore, one area of common weakness are the federal powers within Con Law.  We will see approximately 4-6 MBE questions on these three powers and one of these powers could potentially make up an issue on the MEE.  The key is that this area of law – compared to the other areas of Con Law – is relatively easy to master.

            This post tackles the first of the three federal power, that of the Federal Executive Power – aka the power of the President which is broken up into foreign policy and domestic affairs.  Let us begin with the former. 

Foreign Policy

Executive Agreement vs. Treaties

BAR NOTE – There have been 1-2 MBE questions on the difference(s) between executive agreements and treaties on the last three bar exams.  This area of law is considered “nuance” but has been tested recently so by definition, we must know it!

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. Crucial differences exist between the power and force of a treaty versus that of an Executive Agreement.

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.

BAR NOTE – State law will NOT preempt this particular presidential power.  That will NOT be a correct answer on an MBE question.


Veto Power

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.

Defense Against Attack

Some areas are clear, such as the authority for the President to commit our forces to defend against a sudden attack. 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 pre-emptive strike prior to an anticipated enemy attack or to commit troops to defend our allies against a sudden attack.

Domestic Affairs

Appointment Power

The President has the power to appoint federal judges, ambassadors, and other "principal officers” of the United States, subject to Senate confirmation of such appointments. “Principal officers” here includes ambassadors and Members of the Cabinet. Although the Senate may opt not to confirm a Presidential appointment, Congress cannot limit or eliminate the President’s powers to make the appointments. 

Along with the power to appoint comes the power to remove. Except where statutorily limited, the President may remove any executive branch officer. Congress cannot prevent removal entirely, but may limit removal by requiring a showing of good cause, provided the office from which the person is being fired is one where some measure of independence from the President is desirable. For example, the power of the President to remove Members of the Cabinet cannot be limited by Congress, because independence from the President is not desirable for those posts.

So if Congress may limit the President’s power to remove executive branch officers, may Congress itself remove people from these posts? 

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. 

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. The President enjoys absolutely no immunity for non-Presidential acts.

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.

Conclusion

  It is extremely important to understand the three federal powers and how each plays a vital role in the subject of Con Law.  Success on the likely 4-6 MBE questions in this area of law, and perhaps success on a Con Law MEE issue depends on your knowledge of the law. For more information concerning this section of Con Law, another area of Con Law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com

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