In addition, Article II(2) and (3) deals with the issue of official appointments. With respect to diplomatic officials, judges and other officers of the United States, article II sets out four modes of appointment. The default option allows for appointment after appointment by the Speaker and “deliberation and approval” of the Senate. With respect to “officers of poor quality,” Congress may, at its discretion, entrust its appointment “to the president, courts, or department heads only.” The Supreme Court has not drawn a clear line for designating low-quality officers who could be appointed to the executive branch and low-quality officials that Congress can authorize the courts, provided there is no “incongruity” between the functions normally performed by the courts and the fulfillment of their duty of appointment. Morrison v. Olson (1988). With respect to most of what the executive does – namely, the implementation of domestic laws that are not closely linked to foreign affairs or military commands – this interpretation is not convincing. Clauses that claim to be the sole executive theory are the Investment Executive Clause, the Faithful (or “Take Care”) Execution Clause and the Written Opinion Clause. Independently or all together, these clauses are supposed to create two constitutional imperatives. The first is that the president has the right to personally enforce laws and to take the prerogative to make any administrative decision that Congress has assigned to an official in the executive branch. The second is that the president has the right to remove any U.S.

officer who serves on the executive board at will. Although treaties and agreements between Congress and the executive branch are international agreements, these two instruments are legally different. For example, agreements between Congress and the executive branch cannot address matters that fall outside the scope of the powers enumerated by Congress and the President (the powers expressly granted to Congress and the President in Article I, Section 8 and Article II, Section 2 of the U.S. Constitution), while treaties can do so. Moreover, according to the Constitution, a treaty will only be ratified if at least two-thirds of the Senate votes in its favour. In contrast, an agreement between Congress and the executive branch becomes binding only with a simple majority in both houses of Congress. Agreements between Congress and the executive branch should not be confused with executive agreements made by the president alone. The Supreme Court is right that the President and the Senate can enter into contracts beyond the powers listed.

The contractual clause is an executive power in Article II and does not include the restrictions in Article I. Moreover, as Alexander Hamilton said, its abuse is carefully protected by a considerable super-majority rule that does not apply to legislation. The clause of the contract. In the same way that the president can dismiss executive officials in accordance with the executive power, which has not been limited by the appointment clause, the president can terminate contracts in accordance with their conditions, because this traditional executive power has not been limited by the contractual clause. . . .

Comments are closed.