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Jump to: navigation , search. Epstein Federalist No. Office of Information and Regulatory Affairs U. Robbins Chevron v. Natural Resources Defense Council Skidmore v. Humphrey's Executor v. Volpe More court cases. United States , U. Valeo , U. Synar , U. Olson , U. Public Company Accounting Oversight Bd. Abbott Laboratories v. In the case that the President should be unable to perform his duties, the Vice-President becomes the President.
Amendment XXII placed a two-term limit on the presidential office. Congress holds the power to declare war. As a result, the President cannot declare war without their approval.
However, as the Commander in Chief of the armed forces, Presidents have sent troops to battle without an official war declaration which happened in Vietnam and Korea. The War Powers Act attempted to define when and how the President could send troops to battle by adding strict time frames for reporting to Congress after sending troops to war, in addition to other measures, however it has not had much effect see "War Powers Resolution" section in the Commander in Chief Powers article.
The President is responsible for nominating candidates for the head positions of government offices. The President will typically nominate cabinet officials and secretaries at the beginning of his or her presidency and will fill vacancies as necessary.
In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice. These nominations must be confirmed by the Senate. While the President usually has broad appointment powers, subject to Senate approval, there are some limitations. Recent decades have seen much ardent advocacy on behalf of the so- called "unitary executive" idea -- specifically, the view that Article II, by vesting law execution power in the President, forbids Congress from extending any such authority to individuals or entities not subject to presidential control.
Adherents to this unitary executive reading of Article II insist that the Constitution guarantees the President plenary powers, which Congress may not limit, both to discharge unelected executive administrators at will and to direct how those officials shall exercise any and all discretionary authority that they possess under law.
To take but one quotidian example, a Justice Department opinion from the Reagan Administration argued that a statute requiring the Director of the Centers for Disease Control to arrange for the mass mailing of AIDS information fliers, free from any executive branch supervision, violated separation of powers by "unconstitutionally infringing upon the President's authority to supervise the executive branch.
Legal Counsel 47 With regard to most of what the executive branch does -- namely, implementing domestic statutes with no close connection to foreign affairs or military command -- this interpretation is not persuasive. Independently or all together, these clauses are thought to create two constitutional imperatives. The first is that the President is entitled to execute the laws personally and may take upon himself or herself the prerogative of making any administrative decision that Congress has assigned to any officer within the executive branch.
The second is that the President is entitled to remove at will any officer of the United States who serves in the executive branch. The first problem with this interpretation is that the relevant clauses viewed either independently or together did not originally have the semantic implications that unitary executive theorists imagine.
These kinds of clauses were prevalent in early state constitutions that also established relationships between governors, as chief executives of the states, and state agencies. Rather than giving governors unitary executive control over state administration, they nearly all split supervision of the bureaucracy among the different branches of government -- the governor, the legislature, and, in some states, the courts.
Originalist defenders of a unitary executive reading of the federal Constitution often dismiss the interpretive significance of pre state constitutions on the ground that these early texts paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid.
The problem with this stance is that state constitutions written in the first decades after persisted in using the same clauses, by that time found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any "unitary executive" reading of Article II that purports to be based on contemporary understandings of the text alone.
Nor is the argument borne out by a history of institutional practice. The First Congress's handiwork regarding the structure of the initial administrative departments is inconsistent with the idea that the Framers intended a unitary executive.
Congress accommodated presidential control at different levels, from seemingly complete, as with the Department of State, to essentially non-existent, as with the boards and commissions authorized to oversee the Mint, to buy back debt of the United States, and to rule on patent applications. Unitary executive advocates may point to a variety of presidential statements over the years asserting the existence of a comprehensive presidential supervisory authority.
But again to quote Justice Jackson, who wrote in about constitutional debates on the scope of presidential power: "A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question.
Unitarian arguments based on presidential statements simply cannot overcome Congress's conspicuous eclecticism from its first session forward in fashioning different administrative structures with different lines of accountability to different sources of supervision. Finally, the argument for the unitary presidency makes the mistake of anachronism. The managerial presidency extolled in the late eighteenth century was just not conceptualized in the policy terms now understood by modern presidentialists.
Even if the original presidential office had been intended to be unitary in some administrative sense, the President's originally designed managerial powers cannot logically add up to the contemporary version of unitary power urged upon us by twenty-first century presidentialists, who interpret the Constitution as putting the President personally in charge of the exercise of any or all policy making discretion that Congress may delegate to anyone within the executive branch.
A better view is fully reconcilable with the text and truer to both relevant Supreme Court opinions and our institutional history.
It holds that outside those particular subjects that are independently within the President's inherent powers, such as issuing pardons or making treaties, the degree of policy control the President may exercise over subordinate officers is up to Congress. Congress is limited, in turn, only by the Constitution's constraints on the scope of national legislative authority and the President's entitlement to dismiss officers of the United States who are breaking the law or negligent in the execution of their duties.
For this reason, there is an intimate connection between the President's relationship with Congress and the President's relationship to the remainder of the executive establishment.
Specifically, the latter is significantly determined by the former. The Constitution gives Congress the political discretion to defer substantially to the pleas of the executive for highly centralized control over administrative agencies, but only if Congress chooses to do so. The bare framework of Article II leaves presidents with the task of persuading Congress that authorizing such control over any particular agency is in the public interest -- a judgment of policy, not constitutional interpretation.
The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution.
The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.
Courts are obligated to use the interpretive methods at the time of enactment to find the better-supported meaning, even if an ambiguous text can yield more than one meaning. The results of an originalist reading of these Clauses would at times favor the President, but at other times disfavor him, but they would more generally promote accountability.
They would also create more bright line rules and limit the discretion of the Supreme Court to make decisions according to opaque balancing tests that maximize its own power.
Appointments Clause. The Appointments Clause must be read against the background of "the executive power" granted to the President. That authority included the traditional powers of an executive, not simply enumerated powers as those specified in Article I.
Article II then qualifies that understanding by expressly giving some of the executive's traditional powers to Congress.
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