Vail Daily column: What is executive authority?
January 31, 2017
The new president has been — to say the least — frenetic in his first week in office. Among other things, he has wielded his gold-tipped pen to exercise his executive authority. While not all he has done has exactly amounted to "enacting" legislation — for example, his executive order regarding the repeal of Obamacare — amount to little more than setting a "tone" — the question of from whence does executive authority actually arise seems particularly apt.
Stated simply, what can the president do without having to pull the Congress along? And what can the president not do except with congressional buy-in?
Without delving too much into specifics, one of the things the president can likely not do on his own is to build his wall. The reason for this may be found in the United States Constitution. Article 1 Section 8 lists 27 express powers of Congress, the most important of which include the power: to tax, to borrow money, to regulate commerce and currency, and to declare war. While Trump could try to finagle existing law enacted by Congress in both 2008 and 2010 to build the border wall, he would need to figure out a way to pay for it. Oh yeah, there's that.
If Mexico refuses to ante up — which, the betting money says is a certainty if Mexican President Pena Nieto wants to keep his political head — then the president would have to turn to Congress to appropriate the money to fund the bricks and mortar. In short, Congress would have to show the president the money and, presumably answer to the folks back home how a $15 billion-or-so wall could be sold as part and parcel of fiscal conservatism. The president could try to get the dough through the Department of Homeland Security's annual funding bill. However, he would need to overcome an almost-guaranteed Democratic filibuster — meaning he would need 60 votes in the Senate — requiring Democratic support. For those keeping score, there are less than 60 Rs in the new Senate so, "no, not likely."
While I'll leave the bickering to others, the question still remains; What authority allows the president to wield his executive pen?
The power is twofold. First, there is the Constitution. Second, there is particular legislative authority whereby, by a specific statute or another, the Congress has given the president authority to act on his own in one matter or another.
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The secret sauce lies in Article II, Section 1, Clause 1 of the Constitution which provides that "…executive Power shall be vested in a President of the United States of America…."
This "vesting clause" is what confers federal executive power upon the President.
Similar clauses are found in Article I and Article III. The former bestows legislative power exclusively to the Congress, and the latter grants judicial power solely to the Supreme Court. Taken together, these three articles create a separation of powers among the three branches of the federal government. Each of these independent and sovereign branches provides checks and balances on the operation and power of the other two.
The president's executive power is subject to two important limitations. First, the president lacks executive authority in those matters explicitly granted to the Congress. As such, the president cannot declare war, regulate commerce, or take certain other actions reserved to Congress. Second, specific constitutional provisions may check customary executive authority. Notwithstanding his executive power, the president cannot make treaties or appointments without the "advice and consent of the Senate." Likewise, the president's pardon power is limited. As treaties are by law official agreements with foreign governments, they are recognized as such only after Senate ratification. The president cannot make treaties unilaterally. However, the President does determine and decide U.S. foreign policy and can enter into non-binding discussions and give conditional approval to agreements reached with foreign governments subject to future Senate ratification.
Regardless of the inability to declare war, the president does have the power to unilaterally order military action in defense of the United States when he determines that a foreign political entity poses a clear and present danger to the safety and security of the United States. Your imagination does not have to stretch very far to have seen this in action, likely many times in your own lifetime. The only limitation on that power is a requirement to notify specific members of Congress within 48 hours after the beginning of military operations. Once proper legal notification is given, military action can continue and even remain secret so long as the president judges it necessary to national security.
Additionally, since official treaties are specifically created under and by constitutional law and are entered into by both the government and the people as a whole, in his capacity as head of state and as the single individual representative of the United States, the president does have co-authority to unilaterally withdraw the United States from treaties if he determines that so doing serves the best interests and well-being of the United States.
As far as presidential appointments — as with treaties — a person is not officially appointed to a position until his/her appointment is approved by the Senate. You can see that at work in the present Senate grillings. Prior to Senate approval and swearing-in, the presidential designees are "nominees" rather than "appointees." Some positions — such as White House staff and advisors — may filled by the president at his pleasure and do not require Senate approval.
It is interesting to note that the vice president is not constitutionally vested with any executive power. Nonetheless, the Constitution dictates that the president and vice president are to be elected at the same time, for the same term, and by the same constituency.
With his executive authority, the president can do a lot of "damage" but his authority is not unlimited. And even what is permitted to the president is subject to challenge in the courts.
The frenzy will undoubtedly die down. What remains to be seen, however, are the lasting effects of this president's opening flurry of wild pen strokes. Only time, it seems, will tell.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com.
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