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What is a Treaty?
- An agreement between the US and a foreign country
- Negotiated by the President
- Effective when ratified by Senate
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If a state law conflicts with an effective treaty, which one prevails?
The Treaty prevails because of the supremacy clause.
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If a treaty conflicts with a federal statute, which one wins?
The one adopted last in time controls—the one adopted earlier must yield to the more recently adopted law or treaty.
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What is an Executive Agreement?
- An agreement between the US and a foreign country
- Effective when signed by the President and head of the foreign country
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For what purpose may an Executive Agreement be used?
Any purpose! Including things that could be effected by treaty.
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If an Executive Agreement conflicts with a state law, which one wins? With a federal law?
- State law conflict: The Executive Agreement wins
- Federal law conflict: The federal law wins (includes treaties and, of course, the Constitution)
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Can the President direct the movement of American troops in foreign countries?
- YES! As Commander-in-Chief, the President has broad authority to direct the movement of American troops both domestically and abroad. This power is valid, even if used for an ostensibly wacky purpose. This power is also valid, even if Congress has not formally declare a war. |
- Exam tip: On the MBE, the best answer is that the President's exercise of power is not subject to judicial review because it is an unjusticiable political question. The next best answer is that the President wins.
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How are ambassadors, federal judges, and officers of the US appointed?
- President appoints, and
- Senate gives its advice and consent
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What types of appointments don't require Senate approval?
Appointment of inferior officers don't require Senate approval when Congress has expressly vested appointment power in others—most notably the President, heads of departments, and the lower federal courts
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Can the President freely remove (fire) an executive branch official?
YES, unless removal is expressly limited by statute
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Under what circumstances can Congress expressly limit the President's power to remove executive branch officials? (hint: 2 requirements)
- 1) Officer's independence from the President is desirable, AND |
- 2) Removal of the independent officer is limited to instances of a showing of "good cause" (i.e., Congress may limit, but cannot prohibit removal)
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When does impeachment occur?
- • Impeachment: occurs in the House of Representatives by a majority vote, BUT
- • Conviction: occurs in the Senate by a two-thirds vote (60 votes)
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Who can be impeached?
- President
- Vice President
- Federal Judges
- All Officers of the United States
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What acts are impeachable?
- Treason, or
- Bribery, or
- High crimes and misdemeanors
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Does the President have immunity from civil suits?
- • YES, but only from civil suits while in office and for money damages
- • There is no immunity from civil suits prior to taking office
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What is the Executive Privilege?
- A privilege assertable by the President, and which prevents disclosure or discovery of presidential papers and conversations. |
- Note: the privilege is qualified, not absolute, and may yield to other important government interests.
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Under what circumstances may a Presidential Pardon be granted?
- Accusation or conviction of Federal crimes. |
- A few things to note:
- • Applies to federal, not state crimes
- • Applies to crimes, not civil liability
- • Cannot pardon persons impeached by the House of Representatives
- • Cannot pardon underlying crimes that led to impeachment
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