Robert A. Levy
The incoming administration seems poised to exercise an array of controversial executive powers. Here are some of the legal considerations.
Can the president impose tariffs without congressional approval?
Recent laws give the president substantial authority on tariffs to protect industries harmed by global trade, but blanket tariffs on all foreign goods might not withstand challenge. That’s especially true for tariffs imposed on Mexico and Canada, which are part of a free-trade pact negotiated in 2020 by Trump himself.
Aside from legal concerns: Tariffs are typically paid by the importer. Assuming no increase in the money supply, their inflationary impact will depend on two main factors: (1) The extent to which the tariff is passed along to customers, workers, and suppliers, or absorbed by shareholders. (2) The price elasticity of demand, which will determine whether any price increase will be offset by diminished sales or by other price reductions.
Can the president make recess appointments without Senate approval?
Normally, high-level presidential appointments require Senate approval. But the Constitution allows temporary appointments for vacancies that arise when the Senate isn’t in session. Those appointments must be confirmed by the Senate by the end of the following session of Congress—i.e., within a maximum of two years—or they expire. The Constitution also requires both houses to approve any recess exceeding three days. But if the two houses disagree as to the “time of adjournment,� the president “may adjourn them to such time as he shall think proper.� The courts haven’t decided if a unilateral recess by only one chamber constitutes disagreement as to the time of adjournment. Nor have the courts decided if “such time� refers to the beginning or the end of the adjournment, or if the president can adjourn only sessions that he has convened on “extraordinary Occasions,� as provided in Article I, section 3.
The Senate has also held pro forma sessions, which are called to order but no business is conducted, to block the president from making recess appointments. In 2012, during one of those pro-forma sessions, President Obama appointed three people to the National Labor Relations Board. But the Supreme Court, in NLRB v. Canning (2014), invalidated the appointments. Justice Breyer (9–0) wrote that Congress itself determines when it’s in session. More specifically, he held that: (1) a ten-day minimum break is necessary to declare a recess, and (2) pro-forma sessions are not recesses because Congress retains the capacity to conduct business. He added, however, that when there’s a legitimate recess the president can fill vacancies that arise both during and before the recess—even though the Constitution refers only to vacancies arising during the break.
(Justice Scalia concurred, joined by Roberts, Alito, and Thomas; but Scalia wrote that recesses should be limited to inter-session, not intra-session, breaks; and, he stated, only those vacancies arising during the break could be filled.)
Of course, presidents can begin their terms on January 20 before cabinet nominees are confirmed. But the proper fix is for the president to make temporary appointments, not try to bypass confirmations by declaring a Senate recess. That’s why Congress enacted the Federal Vacancies Reform Act in 1998. It provides for interim appointees, who can serve up to 300 days. Persons serving as acting officials cannot be the ultimate nominee, but they can be the first assistant, another already-confirmed person, or a senior employee meeting certain criteria.
Can the president remove agency heads before their term expires?
The Constitution covers the appointment of agency heads, but not removal. Until 1935, the president could fire his subordinates freely. But in Humphreys Executor v. United States, the court held that the Federal Trade Commission didn’t exercise “executive� power; so, if the president wanted to remove an FTC commissioner, he could do so “for cause� only. In Morrison v. Olson (1988), the court held that “for cause� removal restrictions for the independent counsel did not violate the separation-of-powers principle because it did not increase the power of one branch at the expense of another. Accordingly, said the Court, the president wouldn’t be blocked from carrying out his constitutional obligation to ensure that the laws are faithfully executed. (Justice Scalia disagreed, arguing that criminal prosecution by the independent counsel is a “purely executive� function.)
But in 2020, Seila Law v. Consumer Financial Protection Bureau, Chief Justice Roberts (5–4) held that removal only “for cause� (such as inefficiency, neglect, or malfeasance) would violate separation-of-powers because the CFPB was headed by a single director who exercised substantial executive power. Roberts concluded that Congress may not restrict the president’s removal authority except: (1) when removing an inferior officer—e.g., the independent counsel—who has limited duties and no policymaking or administrative authority; or (2) when the agency is headed by a multimember body balanced along partisan lines, appointed to staggered terms, and performing mainly “quasi-legislative� and “quasi-judicial functions.�
Can the president impound congressionally appropriated funds?
President-elect Trump has suggested that he would resurrect impoundment as a means to control federal spending. But the Impoundment Control Act (1974) provides that the rescission of expenditures must be approved by both chambers within 45 days. Notably, however, Congress is not required to vote on a rescission and has ignored most presidential requests. Still, all recent presidents (Reagan forward) have supported impoundment, as did many politicians across the ideological spectrum (including John McCain, John Kerry, Al Gore, and former Speaker Paul Ryan), as well as Elon Musk, Vivek Ramaswamy, and Russ Voight (Trump’s pick to head the Office of Management and Budget).
The Supreme Court hasn’t ruled on the ICA’s constitutionality. But in Train v. New York (1975), the court said that President Nixon could not refuse to fund an environmental project after Congress overrode his veto. Under Trump, if he attempts impoundment, the issue will likely be re-litigated. If so, I would expect the court to weigh the Appropriations Clause, which sets a ceiling but not a floor on federal spending, against separation-of-powers concerns and the president’s duty to faithfully execute the laws.
What are the limitations on the president’s pardon power?
Here are the guidelines: (1) The president can pardon federal criminal acts—not state crimes or civil liability. (2) A pardon cannot protect against future crimes—only past actions. (3) The pardon power extends to all “Offenses against the United States�—without distinguishing between those prosecuted and those not prosecuted.
There are at least two open questions: (1) Can the president pardon himself? Probably not, but the issue is unsettled. (2) With respect to preemptive pardons—i.e., those granted for crimes that may have been committed but have not been charged—must the pardon specify the conduct and the time period? Hunter Biden’s pardon, for example, did specify the period but contained only a vague description of what may have been the crimes. Ditto for Nixon’s pardon, which applied to “all offenses against the United States which he… committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.� A Supreme Court pronouncement on the requisite degree of specificity seems necessary and appropriate.
