Presidential Power: Breaking Law On Whose Orders?

The President of the United States has a duty to ensure that the laws are faithfully executed. This means that while the President is not responsible for executing the laws themselves, they must ensure that their subordinates do so faithfully. This has been a topic of extensive debate, discussion, and litigation.

The President has the power to appoint and remove executive officers. However, the Supreme Court has held that Congress may limit and restrict the President's power to remove inferior officers. In the case of Myers v. United States, the Supreme Court upheld the President's power to remove executive officers, stating that it was necessary for the President to have the power to discipline and supervise executive officers to ensure the faithful execution of the laws.

Despite the President's power to appoint and remove executive officers, the question arises as to what extent the President can instruct subordinates to break the law. This topic has been a subject of debate, particularly in the case of Trump v. United States, which examined the extent of presidential immunity from prosecution for committing allegedly criminal acts during their tenure. The case centred around former President Trump's efforts to overturn the 2020 presidential election results and whether he could be held accountable for any actions taken in his official capacity.

The outcome of Trump v. United States will have significant implications for the separation of powers and the checks and balances within the US government.

The US Constitution and presidential immunity

The US Constitution does not explicitly grant immunity to the President from civil or criminal lawsuits. Instead, presidential immunity has developed over time through the Supreme Court's interpretation of Article II.

The Supreme Court has ruled that the President has absolute immunity from civil lawsuits for official acts within their constitutional authority. This includes all acts in the "outer perimeter" of their duties. However, this immunity does not extend to unofficial conduct or conduct that occurred before the President took office.

The Supreme Court has also ruled that the President is not immune from criminal liability for unofficial acts. The Court has not ruled on whether a sitting President can be criminally charged, but it has stated that a President is presumptively immune from criminal prosecution for official acts. This means that the government can rebut the presumption by proving that a prosecution would not "pose any dangers of intrusion on the authority and functions of the Executive Branch."

The Constitution does provide for the impeachment of the President by the House of Representatives and conviction by the Senate. The bases for impeachment include treason, bribery, or "high Crimes and Misdemeanors."

In terms of subordinates, the President is not responsible for personally executing the laws. Instead, they must ensure that their subordinates execute the laws faithfully. The President has the power to remove and thereby supervise any subordinates who wield executive power.

The Take Care Clause

The clause states that the President "shall take Care that the Laws be faithfully executed". This duty potentially implicates five categories of executive power:

• Powers directly conferred upon the President by the Constitution in Article II.
• Powers granted to the President by acts of Congress.
• Powers granted to heads of departments and executive agencies by acts of Congress.
• Power derived from the duty to enforce criminal statutes of the United States.
• Power to carry out "ministerial duties," where executive officers have limited discretion in their execution.

The interpretation and application of the Take Care Clause have been the subject of momentous constitutional disputes, including debates over the scope of presidential power and the President's power to remove federal officers. It has also played a central role in famous Supreme Court cases, such as Youngstown Sheet & Tube v. Sawyer (1952) and Myers v. United States (1926). Additionally, the clause has been invoked in discussions about the President's enforcement of federal immigration laws and the creation of independent agencies.

In summary, the Take Care Clause imposes a significant duty on the President to ensure the faithful execution of the laws, which has been interpreted to include five categories of executive power. While it grants the President broad enforcement authority, it also serves as a check on presidential power by requiring the faithful execution of laws. The interpretation and application of this clause continue to be a subject of debate and litigation.

The President's duty to uphold the Constitution

The President of the United States has a duty to uphold the Constitution. Article II, Section 3 of the Constitution outlines several presidential duties, including the "Take Care Clause", which states that the President must "take Care that the Laws be faithfully executed".

This clause places the onus on the President to ensure that the laws and the Constitution are upheld. However, it is important to note that the President does not personally execute the law. Instead, they must ensure that their subordinates in the executive branch execute the laws faithfully. The President has the power to appoint and remove executive officers, which allows them to supervise and control the officers' execution of the laws.

Additionally, there have been instances where Presidents have allegedly instructed subordinates to break the law. For example, in the case of United States v. Nixon, the Supreme Court upheld the authority of a special prosecutor to take President Nixon to court to obtain evidence in the President's possession related to the Watergate scandal. This case raised questions about the President's power to fire a special prosecutor and the extent of presidential immunity from criminal prosecution.

While the President has a duty to uphold the Constitution, the ultimate check on their power lies with the other branches of government, namely the legislative and judicial branches. The legislative branch, or Congress, has the "power of the purse" under the Constitution, meaning they control funding and can pass laws to curb presidential power. The judicial branch, through the courts, can also rule on the constitutionality of presidential actions and place limits on presidential power.

In conclusion, the President of the United States has a duty to uphold the Constitution and ensure the faithful execution of the laws. This duty is not absolute, and there have been instances where Presidents have allegedly broken the law or acted unconstitutionally. The checks and balances inherent in the separation of powers between the executive, legislative, and judicial branches provide a crucial safeguard against the abuse of presidential power.

The President's power to remove subordinates

The President's removal power was again curtailed in the Wiener v. United States case, which determined that the President could not remove members of agencies with quasi-judicial functions if he lacked the power to supervise their activities.

In United States v. Nixon, the Supreme Court upheld the authority of a special prosecutor appointed to investigate the Watergate scandal, despite the President's attempt to fire him. This case further highlighted the limits of the President's removal power.

The Bowsher v. Synar decision by the Supreme Court clarified that Congress cannot involve itself in the removal of officials performing executive functions. However, Congress has considerable discretion in limiting the President's power to remove officials in executive agencies.

In conclusion, the President's power to remove subordinates is an important aspect of their duty to ensure the faithful execution of laws. The President can generally remove executive officers at will but is restricted from removing officers with quasi-legislative or quasi-judicial functions. The power to remove subordinates allows the President to supervise executive departments and ensure the laws are faithfully executed.

The President's role as commander-in-chief

The U.S. Constitution outlines the role of the President as the commander-in-chief of the nation's armed forces. This role comes with significant responsibilities and powers, including the duty to "take Care that the Laws be faithfully executed". This means that the President must ensure that the laws of the land and the Constitution are upheld and followed.

While the President is not directly responsible for executing the laws, they have a duty to supervise and ensure that their subordinates within the executive branch do so faithfully. This power of supervision is further reinforced by the President's ability to appoint and remove executive officers. The President can assign responsibility for executing laws to the heads of various executive departments and hold them accountable for their actions.

However, it is important to note that the President's powers are not absolute. The Constitution establishes a system of checks and balances, where the legislative and judicial branches can provide oversight and constrain the President's actions. For example, Congress controls the funding for the military and must approve the President's nominations for federal judges.

In summary, the President's role as commander-in-chief carries significant responsibilities and powers, including ensuring the faithful execution of laws, supervising the executive branch, appointing and removing officers, granting pardons, and making treaties. These powers are balanced by the checks and balances built into the U.S. political system.

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