The separation of powers - Other powers

Learning Outcomes

After reading this article, you will be able to identify and explain the main "other powers" within the separation of powers framework for the MBE. You will understand the constitutional basis, scope, and limits of the treaty power, appointment and removal authority, impeachment, and executive privilege. You will be able to apply these principles to MBE-style questions and avoid common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the allocation and limits of federal powers beyond the main legislative, executive, and judicial functions. This includes:

• The constitutional basis and scope of the treaty power.
• The appointment and removal of federal officers.
• The impeachment process and its consequences.
• The doctrine of executive privilege and immunities.
• The role of the non-delegation doctrine and legislative veto.
• The presentment and bicameralism requirements for valid federal lawmaking.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for a treaty to become binding federal law?
   1. Approval by a majority of the House and Senate
   2. Signature by the President alone
   3. Ratification by a two-thirds vote of the Senate
   4. Approval by the Supreme Court
2. Which branch has the exclusive power to remove federal judges from office?
   1. The President
   2. Congress through impeachment
   3. The Supreme Court
   4. The Senate alone
3. The President claims executive privilege to withhold documents from a criminal investigation. Which is true?
   1. Executive privilege is absolute and cannot be challenged.
   2. Executive privilege can be overridden by a demonstrated specific need in a criminal case.
   3. Only Congress can override executive privilege.
   4. Executive privilege applies only to military matters.
4. Congress passes a law allowing a committee to overturn agency regulations by simple resolution. Is this valid?
   1. Yes, if the President consents.
   2. Yes, if the committee is bipartisan.
   3. No, because it violates the presentment and bicameralism requirements.
   4. No, because only the courts can overturn agency rules.

Introduction

The U.S. Constitution divides federal power among the legislative, executive, and judicial branches. Beyond the core powers of making, enforcing, and interpreting law, each branch possesses "other powers" that are frequently tested on the MBE. These include the treaty power, appointment and removal authority, impeachment, executive privilege, and the requirements for valid federal lawmaking. Understanding the scope and limits of these powers is essential for MBE success.

The Treaty Power

The President may negotiate treaties with foreign nations, but a treaty does not become binding federal law until it is ratified by a two-thirds vote of the Senate.

Key Term: Treaty Power
The President's authority to negotiate treaties, which become binding federal law only when ratified by a two-thirds Senate vote.

A valid treaty, once ratified, has the same legal status as a federal statute. If a treaty conflicts with a federal statute, the most recent prevails. No treaty can override the U.S. Constitution.

Appointments and Removals

The President appoints "principal officers" (such as cabinet members, ambassadors, and federal judges) with the advice and consent of the Senate. Congress may vest the appointment of "inferior officers" in the President alone, in the courts, or in the heads of departments.

Key Term: Appointment Power
The President's authority to nominate and, with Senate confirmation, appoint principal federal officers.

The President may remove executive officers, but Congress may limit removal of independent regulatory officials by requiring good cause. Federal judges may only be removed by impeachment.

Key Term: Removal Power
The President's authority to remove executive officers, subject to limits for certain independent officials; federal judges may only be removed by impeachment.

Impeachment

Impeachment is the process by which Congress may remove the President, Vice President, and all civil officers (including federal judges) for "treason, bribery, or other high crimes and misdemeanors." The House of Representatives has the sole power to impeach (by majority vote), and the Senate has the sole power to try impeachments (requiring a two-thirds vote to convict and remove).

Key Term: Impeachment
The constitutional process by which Congress may remove federal officers for serious misconduct, requiring a majority in the House and two-thirds in the Senate.

Impeachment is a political, not a criminal, process. The only consequence is removal from office and possible disqualification from future office; criminal prosecution may still follow.

Executive Privilege and Immunity

The President has a qualified privilege to withhold confidential communications with advisers (executive privilege). However, this privilege may be overridden by a demonstrated, specific need for evidence in a criminal case.

Key Term: Executive Privilege
The President's qualified right to keep certain communications confidential, subject to override in criminal proceedings.

The President has absolute immunity from civil damages for official acts, but no immunity for acts before taking office or for criminal prosecution.

Key Term: Executive Immunity
The President's absolute immunity from civil liability for official acts, but not for acts before office or criminal prosecution.

Non-Delegation Doctrine and Legislative Veto

Congress may delegate legislative power to executive agencies if it provides an "intelligible principle" to guide the exercise of that power. However, Congress may not retain the right to overturn executive actions by a simple resolution or committee vote (the "legislative veto"). All legislative acts must satisfy bicameralism (passage by both Houses) and presentment (submission to the President for signature or veto).

Key Term: Legislative Veto
An attempt by Congress to overturn executive action by resolution without passing a new law; unconstitutional because it violates bicameralism and presentment.

Presentment and Bicameralism

For a federal law to be valid, it must be passed by both the House and Senate (bicameralism) and presented to the President for signature or veto (presentment). Congress cannot bypass these requirements by delegating lawmaking to a committee or by using a legislative veto.

Key Term: Presentment
The constitutional requirement that every bill passed by Congress be submitted to the President for approval or veto.

Key Term: Bicameralism
The constitutional requirement that all federal legislation be passed by both the House and Senate.

Worked Example 1.1

Congress passes a law requiring the President to appoint ambassadors only from a list prepared by a Senate committee, and providing that the appointment is deemed confirmed unless the Senate objects within 30 days. Is this constitutional?

Answer: No. The Appointments Clause requires the President to nominate and the Senate to confirm by affirmative vote. Congress cannot limit the President's choice to a pre-approved list or allow confirmation by inaction. Both bicameralism and presentment are required for valid lawmaking.

Worked Example 1.2

A federal agency issues a regulation. Congress passes a resolution in one chamber to overturn the regulation. Is the agency's regulation valid?

Answer: Yes. A one-chamber resolution (legislative veto) is unconstitutional. Congress must pass a new law by both Houses and present it to the President to override agency action.

Exam Warning

The MBE frequently tests the legislative veto. Remember: Congress cannot overturn executive or agency action by simple resolution or committee vote. All legislative acts require passage by both Houses and presentment to the President.

Revision Tip

For appointment and removal questions, always ask: Is the officer "principal" or "inferior"? Who appoints? Who removes? What limits apply?

Key Point Checklist

This article has covered the following key knowledge points:

• The treaty power requires Senate ratification by two-thirds; treaties and statutes are equal, but neither overrides the Constitution.
• The President appoints principal officers with Senate consent; Congress may vest appointment of inferior officers elsewhere.
• The President may remove executive officers, but Congress may limit removal of independent officials; federal judges may only be removed by impeachment.
• Impeachment is a political process: House impeaches, Senate tries, two-thirds required for removal.
• Executive privilege is qualified and may be overridden in criminal cases; executive immunity is absolute for official acts.
• Congress may delegate legislative power if it provides an intelligible principle, but may not use a legislative veto.
• All federal laws must satisfy bicameralism and presentment; legislative vetoes and committee overrides are unconstitutional.

Key Terms and Concepts

• Treaty Power
• Appointment Power
• Removal Power
• Impeachment
• Executive Privilege
• Executive Immunity
• Legislative Veto
• Presentment
• Bicameralism