The Constitution is the primary source of power for the President of the United States. Article II, Section 1 states:
The executive power shall be vested in a President of the United States of America.
Express Presidential Powers
Article II, Section 2 outlines the expressed powers of the President, including Appointment power, Removal power, Pardon power, and the role as Commander and Chief:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
The President of the United States is given the power to issue pardons in the Constitution. Section 2 of Article II states
[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
The Supreme Court has established that the presidential pardon power is broad and expansive. In Ex parte Garland, the Court found that the pardon power “extended to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” 71 U.S. (4 Wall.) 333, 380 (1866).
President Gerald Ford’s pardon of Richard Nixon encapsulated this broad reading of the pardon power. Ford granted “a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
Pardons can include all crimes at any stage of proceedings, and even prior to indictment. However, these offenses are limited to criminal offenses, not civil offenses. In Ex parte Grossman, the Supreme Court held that the president could issue a pardon as to a criminal contempt of court, but not as to a civil contempt. 267 U.S. 87, 121-122 (1925).
Can Congress limit the pardon power?
Not by passing legislation. The only way that another branch can limit the pardon power is by a constitutional amendment, or a new interpretation by the Supreme Court that overrules precedent.
In United States. v. Klein, then-President Abraham Lincoln issued a full pardon to all Confederate soldiers and supporters with the specific stipulation that all property rights be restored (except as to slaves). Congress then passed a law that limited the restoration of property rights. While the Court focuses directly on other issues, the Court found “that the President’s power of pardon ‘is not subject to legislation;’ that ‘Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.'” 80 U.S. 128, 141 (1871)
Implied Presidential Powers
Writing Executive Orders
The President of the United States has the authority under the Administrative Procedure Act (APA) to write executive orders. They are enforceable only when limited to (1) matters of military or foreign affairs; (2) matters relating to agency management, or personnel, or public property, loans, grants, benefits, or contracts; (3) interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or (4) when the agency has good cause to circumvent rule making procedures (notice and comment) as impractical, unnecessary, or contrary to the public interest. 5 U.S.C. § 553(a)-(b).
If the President’s executive order does not fall within these limited categories, then is it an improper rule because it failed to comply with the rule making procedures of the APA. In other words, it is a flashy sleight of hand to create the appearance of real momentum, but may ultimately be unenforceable or illegal. But if the order is within those four exceptions, then it is a true demonstration of the discretionary power of the Presidency. Executive orders can overrule other executive orders.
Example of #1: Acting as military commander or Head of State, negotiate treaties
Example of #2: Hiring freeze or hiring order, asking a Secretary to do or not do a thing
Example of #3: Selective enforcement guidances, prosecutorial discretion memos.
When are rule making procedures (notice and comment) necessary?
Any order by the President, or a regulation created by agencies must go through rule making procedures if it does not in one of the four above exceptions.
Are there other limitations on the content of executive orders?
Yes. Executive orders must comply with statutes and the Constitution.
Can an executive order overrule or override a regulation or statute?
No. An executive order must comply with existing statutes, regulations, and the Constitution. Any rule that has been finalized requires a new process to revoke or change it. There must be an agency proposal for the revocation or change, public comment period, review of the comments and issue a final rule. But an executive order may stop any rule that has not been finalized or to nullify “midnight regulations,” any regulation passed in the last few months of the past administration.
Tal Kopan, Could a President Trump reverse Obama’s regulations on ‘Day One’?Could a President Trump reverse Obama’s regulations on ‘Day One’?, CNN (Sept. 28, 2016).
Peter M. Shane, The Quiet GOP Campaign Against Government Regulation, The Atlantic (Jan. 26, 2017)