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Executive Authority is the collection of powers that
every President possesses as a matter of holding the office of President.
Among these powers is the dismissal of any general officers in any
branch of the armed
services (as Commander in Chief), and the power to nominate all
federal officers, civilian or military, who are subject to confirmation
by the Senate.
Where conflict arises between the branches of government,
the limits of Executive Authority are tested. For instance, a President
may sign a treaty, but it doesn't go into effect until the Senate
ratifies it. However, a President can abrogate a treaty without
Senate approval. (See the Goldwater v. Carter case, in which Senator
Goldwater sued President Carter over the latter's termination of
the Panama Canal Treaty, but lost in court.)
Another ripe area for conflict is Executive Orders. In some areas
such as revising tariffs on trade, Congress has given the President
power to act immediately. In some areas such as reorganizing the
White House staff, Congress does not interfere with the President's
unilateral decisions. But where a President issues an Executive
Order on a matter that would normally be subject to legislation
by Congress, Congress may claim that the President has exceeded
his Executive Authority. This area of conflict has not yet been
resolved by the courts.
Coming Soon!
11/19/07: "Please
Don't Pick this Fight", by Horace Cooper, for the Legal
Times
EXERPT: "Many Congress watchers assumed that
the fight between the House Judiciary Committee and the White
House over subpoenas to former White House Counsel Harriet Miers
and current White House Chief of Staff Joshua Bolten would end
when Attorney General Alberto Gonzales resigned. But John Conyers
Jr. (D-Mich.), chairman of the committee, not only doesn’t think
the fight is over, he reportedly is urging House leaders to move
quickly to schedule a full vote soon on a resolution to hold Miers
and Bolten in criminal contempt of Congress. The two aides were
subpoenaed as part of the congressional investigation into whether
the Justice Department or the White House let partisan politics
unduly influence the hiring and firing of U.S. attorneys. But
a criminal contempt resolution is the wrong course. Passing the
resolution will set up a destructive constitutional showdown with
the White House and, because the Supreme Court will most likely
resolve it in favor of the executive branch, the result ultimately
could diminish Congress’ authority. The fallout could mean that
future presidents will be emboldened to invoke executive Authority
rather than cooperate with congressional investigations... Thus,
the impending battle pits Congress’ right to conduct oversight—in
this case, over the hiring and firing of U.S. attorneys—against
the president’s right to candid discussions and advice from key
assistants. It is a conflict that— unless avoided—courts ultimately
will have to resolve."
9/22/07: Executive
Decision, by Horace Cooper for TownHall.com
EXERPT: "President Bush's announcement of the
name of the person who would replace Attorney General Alberto
Gonzales was eagerly anticipated by many in Washington. Gonzales,
caricatured as inept and bumbling by critics of the President,
had decided in August that..."
9/13/07: "Put
your lack of money where your mouth is" by John Armor
EXERPT: "The subtext of yesterday's Joint hearing
in the House featuring General Petraeus and the coming Senate
hearing, is the position that the Democrats in Congress will take
when the dust settles. Some Democrat warhorses, like Senator Kennedy,
staked out their..."
8/28/07: "Gonzales
is Gone but Dems Should Be Careful What They Ask For" by
Horace Cooper
EXERPT: "Score another one for the politics
of personal destruction. Democrats have managed to run out of
town one of President Bush's longest serving aides from Texas
-- Attorney General Alberto Gonzales.' But they may want to put
the champagne glasses down because this resignation may end up
for the Democrats being a case of "be careful what you ask
for."
8/24/07: "Leahy/Schumer
Threaten Judicial Neutrality" by Horace Cooper
EXERPT: "Recent comments by Senators Leahy
and Schumer critical of Justices Roberts and Alito demonstrate
the senators' significant misunderstanding about the role of the
Supreme Court and reveal their own flawed judicial philosophy.
According to Senators Leahy and Schumer, Justices Roberts..."
8/16/07: "President
Bush and the Constitution aren't Enemies"
EXERPT: "The latest spate of articles accusing
the Bush Administration of trampling the US Constitution in prosecuting
the War in Iraq have quoted Bruce Fein, cited variously as a "conservative
lawyer" and "a deputy attorney general in the Reagan
Administration." He is not being quoted because he is a reliable
source but because he says what the opponents of the war want
said. Factual inquiry stops there..."
8/16/07: "War
and the Constitution: Has War on the Terrorists Been Properly Declared?",
by John Armor
EXERPT: "The United States does not legitimately
go to war because the president says so. Or because the United
Nations, or NATO, or any other organization says so. Or even because
some other nation commits an act of war against it. The only legal
way for the United States to go to war is stated in the Constitution,
which gives Congress the power "To declare War, grant Letters
of Marque and Reprisal...." The Framers gave that power to
Congress, and only Congress, because they were mindful of European
wars begun by kings, without the consent of the people who paid
the price in blood and taxes..."
6/12/07: Monday's
Pro-Al-Qaida Decision by the 4th Circuit Court of Appeals, by
John Armor
EXERPT: "Monday's divided (2-1) decision by
the Fourth Circuit Court of Appeals is wrong in a number of serious
ways (see "Federal appeals court rules against enemy combatant
policy"). It refers to "enemy combatants" without
knowing what that phrase means..."
6/4/07: Guantanamo
Prisoner Case Dismissed, by John Armor
EXERPT: "Today, a US military judge dismissed
charges against a 20-year-old prisoner. This decision was widely,
but not competently, reported around the world. The Associated
Press story in US papers was close to accurate. Canadian detainee,
Omar Khadr, was accused of... "
Congressional Research Service Report for Congress:
Presidential
Claims of Executive Authority: History, Law, Practice and Recent
Developments
EXERPT: "Presidential claims of a right to
preserve the confidentiality of information and documents in the
face of legislative demands have figured prominently, though intermittently,
in executive-congressional relations since at least 1792. Few
such interbranch disputes over access to information have reached
the courts for substantive resolution, the vast majority achieving
resolution through political negotiation and accommodation. In
fact, it was not until the Watergate-related lawsuits in the 1970’s
seeking access to President Nixon’s tapes that the existence of
a presidential confidentiality Authority was judicially established
as a necessary derivative of the President’s status in our constitutional
scheme of separated powers. Of the eight court decisions involving
interbranch or private information access disputes, three have
involved Congress and the Executive but only one of these resulted
in a decision on the merits. The Nixon and post Watergate cases
established the broad contours of the presidential communications
Authority. Under those precedents, the Authority, which is constitutionally
rooted, could be invoked by the President when asked to produce
documents or other materials or information that reflect presidential
decisionmaking and deliberations that he believes should remain
confidential. If the President does so, the materials become presumptively
privileged. The Authority, however, is qualified, not absolute,
and can be overcome by an adequate showing of need. Finally, while
reviewing courts have expressed reluctance to balance executive
Authority claims against a congressional demand for information,
they have acknowledged they will do so if the political branches
have tried in good faith but failed to reach an accommodation.
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