The separation of powers - Other powers

Learning Outcomes

This article explains key “other powers” in the separation of powers framework for the MBE, including:

• Identifying the constitutional source, scope, and domestic ranking of treaties and executive agreements, and predicting how conflicts with statutes and state law will be resolved on the exam.
• Distinguishing principal from inferior officers and applying the Appointments Clause and removal rules to agency designs, independent commissions, and judicial officers.
• Analyzing impeachment as a political check on federal officers, and differentiating it from criminal prosecution, censure, and the President’s limited pardon authority.
• Evaluating claims of executive privilege and immunity in civil and criminal settings, and determining when confidentiality or presidential protection must yield.
• Applying the pardon power’s requirements and limits, especially its restriction to federal crimes and its inapplicability to impeachment proceedings.
• Using the non-delegation doctrine, bicameralism, and presentment to assess the validity of delegations, legislative vetoes, and purported “shortcuts” around the lawmaking process.
• Assessing presidential impoundment of funds and the Take Care Clause to determine when refusal to spend appropriated money violates separation-of-powers.
• Systematically spotting separation-of-powers violations in MBE-style fact patterns, choosing the best answer among close options, and avoiding distractors that misstate institutional roles.

MBE Syllabus

For the MBE, you are required to understand the allocation and limits of federal powers beyond the core legislative, executive, and judicial functions, with a focus on the following syllabus points:

• The treaty power: who makes treaties, how they are approved, and their status in domestic law.
• Executive agreements and their relationship to treaties and state law.
• Appointment and removal of federal officers: principal vs. inferior officers; Congress’s role.
• Impeachment: who can be impeached, grounds, procedure, and consequences.
• Presidential executive privilege and executive immunities (civil and, in outline, criminal).
• The pardon power and its limits (especially no pardons for impeachment).
• The non-delegation doctrine and why it is rarely used to invalidate statutes.
• The legislative veto and why committee or one-house “vetoes” are unconstitutional.
• Presentment and bicameralism as prerequisites for valid federal lawmaking.
• Impoundment and the President’s duty to execute spending laws.
• Legislative and judicial immunities (Speech or Debate Clause and judicial immunity) at a basic level.

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 immunity.
• The pardon power.
• The requirements for valid federal lawmaking, including non-delegation, bicameralism, and presentment.
• The President’s duty to spend appropriated funds.

These powers are centrally about separation of powers and interbranch checks. Many MBE questions are built around subtle violations—such as Congress trying to control executive officers, or a committee attempting to “veto” agency action. The key is to know who may do what, and by which constitutionally prescribed process.

Key Term: Treaty Power
The President’s authority to negotiate treaties with foreign nations; a treaty becomes binding federal law only when ratified by a two-thirds vote of the Senate and cannot violate the Constitution.

The exam often embeds these powers inside factual stories about environmental rules, criminal investigations, or foreign policy crises. Always ask:

• Which branch is acting?
• Under what power?
• Did the action follow the correct constitutional procedure?

Once you identify those pieces, separation-of-powers questions become much more mechanical.

The Treaty Power

The treaty power is a classic shared power between the President and the Senate.

• The President negotiates and signs treaties.
• A treaty does not become binding federal law until it is ratified by a two-thirds vote of the Senate (no House role is required).
• Once ratified, a treaty is “the supreme Law of the Land,” but it is always subject to the Constitution.

Domestic status of treaties

Under the Supremacy Clause, a valid treaty has the same domestic status as a federal statute:

• A treaty can override prior inconsistent federal statutes, and a later federal statute can override an earlier treaty. This is the “last-in-time” rule.
• A treaty can preempt inconsistent state law—states cannot “opt out” of a valid treaty.
• No treaty can override the U.S. Constitution. If a treaty conflicts with the Constitution, courts apply the Constitution.

Key Term: Self-Executing Treaty
A treaty that, by its own terms or nature, operates directly as domestic law without further congressional legislation.

Key Term: Non-Self-Executing Treaty
A treaty that requires implementing legislation from Congress before it has domestic legal effect.

Many exam questions turn on whether a treaty is self-executing:

• A self-executing treaty can be invoked directly in U.S. courts, just like a statute.
• A non-self-executing treaty is essentially a promise between governments that does not by itself create enforceable rights in domestic courts until Congress passes an implementing statute.

On the MBE, if a party sues directly on the text of a treaty and Congress has done nothing to implement it, consider:

• Does the treaty say it is effective immediately and in mandatory terms (“shall have effect,” “shall be treated as law”)?
• Does the subject matter naturally require implementing legislation (e.g., detailed regulatory schemes, spending programs)?

If the treaty is non-self-executing and Congress has not acted, the claim usually fails.

Treaties, federalism, and congressional power

Treaties can reach some subjects that Congress might not otherwise be able to regulate solely under an enumerated power, but there are limits:

• A validly ratified treaty can justify implementing legislation under the Necessary and Proper Clause, even if Congress would not otherwise have power to pass that law.
• But neither a treaty nor its implementing statute may contradict explicit constitutional limits (e.g., Bill of Rights protections).

Thus, a treaty cannot authorize censorship of political speech or suspend the right to a jury trial, even if all political branches agree.

Executive Agreements

Key Term: Executive Agreement
An international agreement made by the President that does not require Senate approval; it is inferior to federal statutes and treaties but prevails over conflicting state law.

In foreign affairs, the President also enters executive agreements. These:

• Do not require Senate consent.
• May be based on:
  • The President’s own constitutional authority (e.g., recognition of foreign governments, military arrangements within existing authorizations), or
  • Authorization in a prior statute or treaty.
• Are valid so long as they do not conflict with the Constitution or a controlling statute or treaty.
• Preempt conflicting state law, but have lower domestic rank than statutes and treaties.

Hierarchy to remember:

• U.S. Constitution (supreme)
• Federal statutes and ratified treaties (equal rank; last in time controls)
• Executive agreements
• State law

On the MBE, if you see an international agreement without Senate involvement, think “executive agreement,” and remember:

• It can displace conflicting state law.
• It cannot trump a contrary federal statute or treaty.
• It cannot violate constitutional rights.

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 principal officers by an affirmative vote. Congress cannot:

• Limit the President’s choice to a pre-approved list created by a committee; or
• Allow confirmation by inaction (“deemed confirmed” if no vote within 30 days).

This scheme also effectively lets a committee control appointments, bypassing the full Senate, and it evades the constitutionally required confirmation process. Although the statute itself was enacted using bicameralism and presentment, it violates the Appointments Clause and separation of powers.

Appointments and Removals

The Appointments Clause (Article II) governs who selects federal officers and how.

Key Term: Appointment Power
The President’s authority to nominate and, with Senate confirmation, appoint principal federal officers; Congress may vest appointment of inferior officers in the President alone, in the courts, or in heads of departments.

The Constitution divides federal officials into two broad categories: principal officers and inferior officers.

Key Term: Principal Officer
A high-level federal official who reports directly to the President or is otherwise at the top of a chain of authority (e.g., cabinet secretaries, ambassadors, federal judges), requiring presidential nomination and Senate confirmation.

Key Term: Inferior Officer
A federal official who is supervised and directed by principal officers and has limited duties, jurisdiction, or tenure (e.g., many agency officials, magistrate judges); Congress may allow these officers to be appointed by the President alone, the courts, or the heads of departments.

Key Term: Advice and Consent
The Senate’s role in confirming principal federal officers: an affirmative majority vote in the Senate on the President’s nomination.

Key appointment rules:

• Principal officers (cabinet members, ambassadors, federal judges, many agency heads):

  • Must be nominated by the President.
  • Must be confirmed by a majority of the Senate (“advice and consent”).
  • Congress cannot change this structure or substitute another confirmation mechanism.

• Inferior officers:

  • Congress may (but need not) allow appointment by:
    • The President alone,
    • The courts of law, or
    • The heads of departments.
  • If Congress is silent, appointment defaults to presidential nomination plus Senate confirmation.

Key Term: Executive Officer
Any federal official who exercises significant authority pursuant to the laws of the United States, implementing or enforcing federal law on behalf of the United States.

Exam focus: Congress itself may not appoint executive officers. Statutes authorizing the Speaker of the House, the President pro tempore of the Senate, or a congressional committee to appoint voting members of an executive agency are unconstitutional.

• Congress’s only direct appointment powers relate to its own officers (e.g., the Sergeant at Arms), not to executive officials who enforce federal law.

Key Term: Removal Power
The President’s authority to remove executive officers; this is broad for purely executive officials, but Congress may provide limited good-cause protection for certain independent officers. Federal judges can be removed only by impeachment.

Key Term: Good-Cause Removal Protection
A statutory restriction allowing removal of certain officers only for specified reasons (e.g., “inefficiency, neglect of duty, or malfeasance”), often used for members of independent regulatory commissions.

Who can remove whom

The Constitution does not spell out removal in detail, but the Supreme Court has developed key principles:

• Purely executive officers (e.g., cabinet secretaries, many agency heads):

  • Are generally removable at will by the President.
  • Congress cannot give itself a role in approving their removal (e.g., requiring Senate consent to fire a cabinet secretary).

• Independent or quasi-independent officers (e.g., members of independent regulatory commissions performing quasi-legislative or quasi-judicial functions):

  • Congress may give them good-cause protection (“inefficiency, neglect of duty, or malfeasance”).
  • The President can still remove them, but only on the specified grounds.

• Officers appointed by someone other than the President:

  • Generally removable by the appointing authority, unless Congress provides some protection consistent with separation of powers.

• Congress:

  • May not retain for itself the power to remove executive officers (other than through impeachment).
  • May not condition removal on prior congressional approval, or give this power to a congressional committee.

• Federal judges:

  • Have life tenure during “good Behaviour.”
  • Can be removed only through impeachment and conviction by Congress.

Congress’s limits when designing agencies

Congress has broad flexibility to create agencies and allocate appointment power, but must respect two constraints:

1. It cannot appoint executive officers itself.
2. It cannot give executive power to officers under its control.

This second point is a classic trap:

• If Congress creates a board whose members are appointed by congressional leaders and removable by those leaders, that board cannot be given authority to enforce federal law, prosecute violations, or issue binding regulations.

Congress may:

• Create agencies and define their jurisdiction.
• Specify standards guiding agency decisions (intelligible principle).
• Provide good-cause removal protections for some independent officers.

But it may not:

• Reserve to itself the right to approve individual executive decisions (this is a legislative veto problem).
• Place executive power in the hands of an officer that Congress directly hires and fires.

Revision Tip

For appointment and removal questions, always ask:

• Is the officer principal or inferior?
• Who appoints the officer?
• Who removes the officer, and on what terms?
• Does Congress (or a congressional committee) have a direct role in appointment or removal beyond impeachment?

If Congress is directly appointing or removing an executive officer (outside impeachment), a separation-of-powers violation is likely.

Impeachment

Key Term: Impeachment
The constitutional mechanism for accusing and removing certain federal officers for serious misconduct; the House impeaches by majority vote, and the Senate convicts by a two-thirds vote.

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.”

Key Term: High Crimes and Misdemeanors
A constitutional term encompassing serious abuses of office, not limited to statutory crimes; defined in practice by Congress rather than by the courts.

Structure:

• The House of Representatives has the sole power to impeach (analogous to an indictment), by majority vote.
• The Senate has the sole power to try impeachments; conviction and removal require a two-thirds vote of the Senators present.
• When the President is tried, the Chief Justice of the United States presides.

Consequences of conviction:

• Mandatory removal from office.
• The Senate may also, by separate vote, disqualify the person from holding future federal office.
• No other direct penalties (no fine or imprisonment as part of the impeachment judgment).
• The impeached officer remains liable to criminal prosecution in the courts for the same conduct.

Impeachment is a fundamentally political process, and courts generally treat questions about what counts as a “high crime and misdemeanor” or how the Senate conducts a trial as nonjusticiable political questions.

Importantly, the President’s pardon power does not reach impeachment.

Executive Privilege and Immunity

Key Term: Executive Privilege
The President’s qualified right to keep certain confidential communications with advisers and high-level executive officials secret, especially those involving national security or deliberative decision-making; this privilege may be overridden by a demonstrated specific need for evidence in a criminal proceeding.

The President has a constitutionally based privilege to keep confidential communications with senior advisers and officials secret, particularly where:

• National security, military, or diplomatic matters are involved, or
• Disclosure would significantly impair the President’s ability to receive candid advice.

However, the privilege is qualified, not absolute.

In United States v. Nixon, the Supreme Court held that in a criminal case:

• A generalized interest in confidentiality must yield to a demonstrated, specific need for evidence.
• Courts may review materials in camera (privately) to balance the needs of the criminal justice system against the executive’s confidentiality interests.
• The President must comply with a valid criminal subpoena absent a strong, specific showing of privilege (e.g., state secrets).

For congressional investigations and civil cases, a similar balancing applies:

• The more specific and compelling the governmental or litigant need for the information, the more likely the privilege will yield.
• Requests must usually be narrowly tailored and show genuine relevance.

Key Term: Executive Immunity
The President’s absolute immunity from civil damages for official acts taken while in office, and lack of immunity for purely private acts; the scope of any immunity from criminal prosecution is unresolved and not usually tested in detail on the MBE.

The President enjoys:

• Absolute immunity from civil damages for acts within the “outer perimeter” of official responsibilities (e.g., firing an executive official, issuing an executive order).
• No immunity from civil suits based on unofficial conduct that occurred before taking office, or purely private conduct while in office (e.g., a pre-office tort, a private contract dispute).

Key exam points:

• Civil immunity applies to damages. It does not automatically bar injunctive relief or purely forward-looking orders.
• The Supreme Court has not definitively resolved whether a sitting President is immune from criminal prosecution, so MBE questions generally avoid that issue. Focus instead on:
  • The lack of immunity from providing evidence (subject to executive privilege).
  • The clear immunity from civil damages for official acts.

Other executive officials:

• Usually have only qualified immunity in civil suits for constitutional violations (they are liable unless they violated clearly established law).
• Some officials performing functions analogous to judges or prosecutors may have absolute immunity for those particular functions, but that is mostly a civil-rights detail rather than a separation-of-powers issue.

The Pardon Power

Key Term: Pardon Power
The President’s authority to grant reprieves and pardons for federal criminal offenses, except in cases of impeachment; this power cannot be limited by Congress.

The President may grant:

• Reprieves (delays of punishment),
• Pardons (complete forgiveness of the offense and its legal consequences),
• Commutations (reductions of sentences), and
• Broader amnesties to groups,

for offenses against the United States (federal crimes only, not state crimes).

Key limits and features:

• The pardon power covers federal criminal liability only. It does not:

  • Affect civil liability,
  • Overturn judgments in private lawsuits,
  • Erase administrative penalties (unless tied to the criminal judgment itself), or
  • Apply to state criminal prosecutions.

• A pardon can be granted:

  • Before charges are filed,
  • During a criminal case, or
  • After conviction.

• Congress cannot restrict or condition the pardon power. Statutes that try to prohibit certain pardons (e.g., “no pardons for officials convicted of fraud”) would be unconstitutional.

Most critical separation-of-powers point:

• The President cannot use the pardon power to interfere with impeachment. The Constitution expressly excludes “Cases of Impeachment” from the pardon power.
  • A pardon cannot stop an impeachment trial or undo impeachment convictions.
  • An officer who has been pardoned for a crime may still be impeached for the same conduct.

Non-Delegation Doctrine and Legislative Veto

Key Term: Non-Delegation Doctrine
The principle that Congress may not delegate its core legislative power without providing an “intelligible principle” to guide the exercise of delegated authority; in practice, this is a very lenient standard, and most delegations are upheld.

Modern government relies heavily on agencies that issue regulations under broad statutory authority. The Supreme Court has allowed this, subject to a modest check:

• Congress must supply an intelligible principle to guide the agency’s discretion.

Examples of acceptable standards (all upheld in real cases):

• “In the public interest.”
• “Necessary to protect the public health.”
• “Fair and equitable.”
• “Reasonably necessary to prevent significant environmental harm.”

On the MBE:

• Almost any articulated standard will satisfy the intelligible principle requirement.
• Statutes are rarely invalidated under the non-delegation doctrine.
• If Congress has provided any real guidance, the delegation is valid.

Congress may not:

• Delegate legislative power back to itself or to officials it directly controls.
• Vest executive power (e.g., enforcement, prosecution) in officers removable by Congress alone.

Key Term: Legislative Veto
A purported congressional device that allows one house of Congress, both houses without presentment, or a congressional committee to overturn executive action by resolution, without passing a new law through bicameralism and presentment; it is unconstitutional.

A common attempt by Congress to retain control over delegated authority is the legislative veto:

• Congress passes a statute delegating power to an agency, but reserves the right for:
  • One House,
  • Both Houses acting by simple resolution, or
  • A congressional committee,
• To disapprove or nullify individual agency decisions without passing a new law.

This is unconstitutional because:

• Any action with binding legal effect—changing rights or obligations—must satisfy:
  • Bicameralism: passage by both the House and the Senate in identical form.
  • Presentment: submission of the bill to the President for signature or veto.

A legislative veto bypasses the President’s veto power and the full legislative process. The Supreme Court struck down such devices in INS v. Chadha, and the principle applies broadly to any attempt to control executive action by simple resolutions or committee votes.

Exam Warning

The MBE frequently tests the legislative veto. Remember:

• Congress cannot overturn executive or agency action by simple resolution, one-house vote, or committee action.
• To change the legal effect of an agency rule, Congress must pass a new statute that:
  • Is approved by both Houses, and
  • Is presented to the President.

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 because it does not comply with bicameralism and presentment. Unless Congress passes a new statute that:

• Is approved by both the House and Senate, and
• Is presented to the President for signature or veto,

the agency regulation remains valid.

Presentment and Bicameralism

Key Term: Presentment
The constitutional requirement that every bill passed by Congress be submitted to the President, who may sign it into law or veto it.

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

For a federal law to be valid:

• It must be passed by both the House and the Senate (bicameralism).
• It must then be presented to the President, who can sign it into law or veto it.

Key details about presidential action:

• The President has 10 days (excluding Sundays) to act:
  • If Congress is in session and the President does nothing, the bill becomes law without signature.
  • If Congress adjourns during the 10-day period and the President does not sign, the bill does not become law—this is a pocket veto.

Key Term: Pocket Veto
A form of veto in which the President simply fails to sign a bill within 10 days while Congress is adjourned, preventing it from becoming law.

Key Term: Line-Item Veto
A veto power allowing a chief executive to strike out particular provisions of a bill; the Supreme Court has held that the President does not possess line-item veto authority.

The President must sign or veto the entire bill. A “line-item veto,” allowing the President to cancel particular spending items or provisions after a bill becomes law, is unconstitutional.

• In Clinton v. City of New York, the Court held that the President cannot unilously amend or repeal statutes by canceling specific portions.

Congress can override a regular veto with a two-thirds vote in each House.

Congress cannot bypass bicameralism and presentment by:

• Delegating binding lawmaking power to a single House or a committee.
• Using “resolutions” or “orders” to change legal rights and duties unless they are passed by both Houses and presented to the President.

Impoundment and the Duty to Execute Laws

Key Term: Impoundment
A President’s refusal to spend funds that Congress has appropriated; the President may not impound funds when a statute unambiguously requires that they be spent.

As chief executive, the President must “take Care that the Laws be faithfully executed.” This includes spending appropriated funds as Congress directs.

• If a statute gives the President discretion (“may spend up to $X”), the President may choose whether and how much to spend.
• If a statute mandates spending (“shall spend $X on specified programs”), the President has no authority to refuse to spend the funds or to cancel the program entirely.

A President who announces that certain mandatory appropriations “will not be spent” because of policy disagreement is effectively asserting a post-enactment veto, which violates separation of powers and the Appropriations Clause.

On the MBE, if:

• Congress has passed and funded a program, and
• The President refuses to spend the money solely for policy reasons,

the best answer is generally that the President has exceeded executive power and failed to “faithfully execute” the law.

Worked Example 1.3

A treaty between the United States and Country X obligates each nation to allow citizens of the other country to own land within its territory. Years later, Congress passes a federal statute prohibiting foreign citizens from owning land in the United States. The statute conflicts with the treaty. Which governs?

Answer:
Under the “last-in-time” rule, treaties and federal statutes have equal status. When they conflict, the one adopted most recently controls; here, the later federal statute governs domestically. The United States may be in breach of its international obligations, but U.S. courts will apply the statute. Neither the treaty nor the statute can override the Constitution.

Worked Example 1.4

The House impeaches a federal judge for taking bribes. Before the Senate trial begins, the President—who is a close friend of the judge—issues a full pardon for all “offenses related to the impeachment.” What effect does the pardon have on the impeachment proceedings?

Answer:
None. The President’s pardon power extends only to federal criminal offenses. The Constitution expressly excludes “Cases of Impeachment” from the pardon power. The Senate may proceed to try the impeachment and, if it votes by two-thirds to convict, remove the judge from office and potentially disqualify the judge from future federal office.

Worked Example 1.5

A federal grand jury subpoenas audio recordings of Oval Office conversations between the President and senior advisers as part of a criminal investigation of a close presidential aide. The President invokes executive privilege and refuses to produce the tapes, citing the need for candid advice.

Answer:
Executive privilege is qualified, not absolute. A court will recognize a strong interest in confidentiality, especially regarding national security or diplomacy. But in a criminal case, a demonstrated, specific need for evidence can override the privilege. The court may review the tapes in camera and order disclosure of relevant portions. The President cannot categorically refuse to comply with a criminal subpoena based solely on a generalized claim of confidentiality.

Worked Example 1.6

Congress enacts a statute establishing an environmental agency and authorizing it to “issue regulations reasonably necessary to protect the public from significant environmental harms.” The statute also provides that any regulation issued by the agency “shall have no effect if disapproved by a majority vote of the House Committee on Energy and Commerce.” Is this arrangement constitutional?

Answer:
The delegation to the agency is valid: “reasonably necessary to protect the public from significant environmental harms” is an intelligible principle. However, the provision allowing a single House committee to nullify regulations is an unconstitutional legislative veto. Any change in the legal effect of the regulations must be accomplished through a new statute passed by both Houses and presented to the President.

Legislative and Judicial Immunity (Brief Overview)

Although this article focuses on executive power, the MBE also tests legislative and judicial immunities as separation-of-powers safeguards.

Key Term: Speech or Debate Clause
Article I, Section 6 provision giving members of Congress immunity from civil or criminal liability for legislative acts such as speeches, votes, and committee reports.

Key Term: Judicial Immunity
Absolute immunity for judges from civil damages for acts performed in their judicial capacity, even if those acts are alleged to be malicious or in error.

Key points:

• Under the Speech or Debate Clause, members of Congress (and their legislative aides) are immune from being questioned in any other place (including court) about legislative acts, such as:
  • Speeches on the floor,
  • Committee reports,
  • Voting,
  • Introducing bills.
• This immunity does not extend to:
  • Bribes,
  • Public statements outside Congress (e.g., press releases),
  • Purely political or campaign activities.

Judicial immunity:

• A judge is absolutely immune from civil damages for acts performed in a judicial capacity, even if:
  • The act is erroneous,
  • It is allegedly malicious.
• Judicial immunity does not protect:
  • Nonjudicial administrative acts,
  • Acts taken in the complete absence of jurisdiction (a narrow exception).

These immunities support separation of powers by protecting the independent functioning of the legislative and judicial branches from interference via private lawsuits or executive prosecutions.

Key Point Checklist

This article has covered the following key knowledge points:

• The treaty power requires Senate ratification by two-thirds; treaties and statutes have equal domestic status, but neither overrides the Constitution.
• Under the last-in-time rule, a later statute can override a prior treaty and vice versa.
• Self-executing treaties operate directly as domestic law; non-self-executing treaties require implementing legislation from Congress.
• Executive agreements do not need Senate approval and preempt conflicting state law, but they are inferior to federal statutes and treaties.
• The President appoints principal officers with Senate consent; Congress may vest appointment of inferior officers in the President, courts, or department heads, but cannot appoint executive officers itself.
• Executive officers are those who exercise significant authority under federal law; Congress cannot give executive power to officers under its own control.
• The President may remove purely executive officers at will; Congress may provide good-cause limits for certain independent officials, but may not itself remove executive officers except through impeachment.
• Federal judges enjoy life tenure during good behaviour and may be removed only by impeachment and conviction.
• Impeachment is a political process: the House impeaches by majority vote, the Senate tries and convicts by a two-thirds vote, and the consequences are removal and possible disqualification, plus potential subsequent criminal prosecution.
• The President’s pardon power covers federal criminal offenses, can be exercised before or after conviction, cannot be limited by Congress, and does not extend to cases of impeachment.
• Executive privilege protects confidential presidential communications but is qualified and may be overridden by a demonstrated specific need for evidence in a criminal case.
• Executive immunity is absolute for civil damages arising from official acts but does not protect the President from civil suits based on unofficial conduct.
• Congress may delegate rulemaking authority if it provides an intelligible principle; the non-delegation doctrine is rarely used to strike down statutes.
• Legislative veto mechanisms (one-house or committee vetoes) are unconstitutional because they bypass bicameralism and presentment.
• All federal laws must satisfy bicameralism and presentment; the President cannot exercise a line-item veto, and Congress cannot change legal rights by mere resolution.
• The President must faithfully execute spending laws: mandatory appropriations must be spent as directed; there is no general power to impound funds.
• Legislative immunity under the Speech or Debate Clause and judicial immunity for judges protect each branch’s core functions from interference through litigation.

Key Terms and Concepts

• Treaty Power
• Self-Executing Treaty
• Non-Self-Executing Treaty
• Executive Agreement
• Appointment Power
• Principal Officer
• Inferior Officer
• Executive Officer
• Advice and Consent
• Removal Power
• Good-Cause Removal Protection
• Impeachment
• High Crimes and Misdemeanors
• Executive Privilege
• Executive Immunity
• Pardon Power
• Non-Delegation Doctrine
• Legislative Veto
• Presentment
• Bicameralism
• Pocket Veto
• Line-Item Veto
• Impoundment
• Speech or Debate Clause
• Judicial Immunity