Can the President serve as both President and an executive officer? Suppose NIAID director Dr. Anthony Fauci is elected President. If he never officially resigned from his position as a director, and he was never forcibly removed from the same position by the former President or by Congress, could he legally serve as both President and director, and thereby have direct control of the NIAID (as opposed to the bureaucratic nightmares that might otherwise get in his way)?
Under the Hatch Act, Fauci would not be allowed to run for President while employed by the federal government. He would have to resign his post as NIAID director before beginning a campaign. If he did so and were then elected, there's a question of whether he could reappoint himself as NIAID director. In the Office of Special Counsel Hatch Act FAQ there is a question &quot;May I keep my elected position if I become a federal employee after taking office?&quot;, saying that an elected official can be appointed to a federal office. It is unclear to me whether he could actually appoint himself. NAIAD Director doesn't appear to be a politically appointed office, so in principle it would probably be the NIH Director making the appointment. Also, if someone else had been appointed in the meantime, there would be a question of whether that person could be fired to make way for Fauci's reappointment. Generally a Civil Service employee can't be fired except for cause, and the firing can't be done by the President directly; this question came up during the Trump administration. The NIH Director or HHS Secretary could fire them, but would still have to show cause, and the sitting NIAID director would have the right to an appeal process. Even if Fauci was able to serve as President and NIAID Director simultaneously, he'd still be subject to the Hatch Act restrictions in the latter role. So while he'd be President, he'd be forbidden to pursue any political activities - which would make the job of President nearly impossible.
Different people have suggested different things as to what constitutes, &quot;the unitary executive theory&quot;. The US Supreme Court is not likely to simply adopt such a theory in general terms. It will, instead, rule on a specific case that comes before it, and state the principles behind that ruling. There are a number of Supreme Court rulings saying that a President must abide by laws limiting presidential authority, perhaps the most famous is Youngstown Sheet &amp; Tube Co. v. Sawyer, 343 U.S. 579 (1952) in which the Court rules that the President did not have authority to seize steel mills to put a stop to a labor dispute that was allegedly endangering national security during the Korean War. Congress had passed a law providing a different method of dealing with such situations, and President Truman did not follow the method established by that law. The President has broad power over the operations of executive branch agencies, possibly including the right to order an investigation halted for whatever reasons seem good to the president. If such a case came before the courts and they supported the President, presumably they would hold that the President's actions did not constitute obstruction of justice or any other crime. I find it highly unlikely that the Supreme Court would rule that the President may &quot;act against the rule of law&quot;, but they might rule that in particular cases the law implicitly grants the President power to take certain actions that others may not take.
Yes It's legal: but that's more of a bug than a feature. The Constitution says this about the appointment of Supreme Court judges: he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, ... In the Federalist Papers: No 76, Hamilton had this to say: But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. and in No 78: It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that &quot;there is no liberty, if the power of judging be not separated from the legislative and executive powers.&quot; He was wrong about the first but right about the second. Now, this is only the way he saw it and others no doubt had other views but he was focused solely on balancing the powers of the executive and the legislature. There is no consideration of what would happen if, for whatever reason, including partisanship, the executive and the legislature were tightly aligned or hopelessly opposed. Even for the time, this view seems overly idealistic and hopelessly naive. However, these are the same people who thought it would be a good idea for the runner-up in the Presidential race to be the vice-President. Indeed, Hamilton saw and was an integral part of the intense partisanship that arose in the 1790s between the Federalists and the Republicans and the first rejection of a Supreme Court nominee happened during George Washington's Presidency. This analysis shows that the confirmation rate when the White House and Senate are politically aligned is 87.2% but only 47.2% when they are different. That said, most (78%) nominees have been confirmed with the last decade being about average. The US Supreme Court has always been partisan. Indeed, it's only since the Second World War that the idea that it shouldn't be has taken root. In earlier days, the Supreme Court was not populated by jurists - it was the domain of politicians, some of whom moved back and forth between the bench and the Capitol. In Brown v Board of Education 4 of the 9 judges had been Congressmen or Governours and some had never been on the bench of any court before their appointment to SCOTUS. So, yes its totally legal but no, it probably isn't what the founders intended but yes, it has ever been thus.
Yes. US Constitution, at Article two, Section two, provides that the President has the power to nominate the justices and appointments are made with the advice and consent of the Senate. There is nothing restricting the President from doing this on any particular day from beginning to end of his term, and also no restriction on when the Senate may give their advice and consent.
With regard to subpoenas, the Supreme Court's recent ruling in Trump v. Vance makes it clear that states can issue subpoenas to sitting presidents. (The case in question involved a subpoena to a third party for the president's records, not to the president himself, but the opinion makes it clear that the court would apply the same reasoning in either situation.) The questions of what actions a state may take to enforce such a subpoena if it is not complied with, or of arrest / indictment / trial by a state, have never arisen and thus have not been resolved by courts.
In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures.
I would say no, it's not the same. There's a reasonable expectation of privacy that you have in an office that isn't present when you're standing on a roadside or in a city park. In Glik v. Cunniffe, the First Circuit said "The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities" was in the spirit of the First Amendment. And this is not limited to police; an arrest "in the course of filming officials in the hallway outside a public meeting of a historic district commission" was found to be a First Amendment violation in Iacobucci v. Boulter (1st Cir. 1999). But a private meeting in an office is not a "public place" as it is meant in Glik (even if the building is owned by the government.) And the Glik decision says "To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions."
An executive order is a way of memorializing in writing Presidential authority that is either expressly granted to the President by the constitution or statute, or is left to President by implication either from a lack of guidance or as a result of the structure of the constitution and historical precedent. Congress has wide discretion to legislate in a manner that limits the power to make executive orders and pass regulations, and can mandate that the administration issue regulations in a certain area or refrain from issuing regulations in a certain area where the Executive branch is denied discretion or denied the right to set overarching policies as opposed to deciding things on a case by case basis at a lower level in the bureaucracy. In principle, Congress could so micromanage the executive branch that it would be unconstitutional, but that is basically a hypothetical concept with no meaningfully well defined boundaries. The hard cases involve grants of regulatory authority subject to further approval by a subpart of Congress like a committee, as opposed to a full fledged act of law (something called a "legislative veto") which has dubious constitutional status despite being common. The main "meta-legislation" governing regulations in general in the federal government is the Administrative Procedures Act. Subject to the limitations imposed by Congress, a President can take any approach desired to making and changing regulations, but the APA does impose meaningful limits, in particular, on how and how fast, existing regulations can be changed, which may make it hard to eliminate two regulations for each new one that the administration wants to pass or is mandated by Congress to adopt to implement statutes it has passed. But, because a "regulation" is not a meaningfully defined unit, it is a pretty meaningless edict. You can satisfy it simply by cramming two sections of a bunch of regulations into one, essentially reformatting it for political cosmetics rather than making substantive changes, or by incorporating something else by reference. So, the 2 for 1 EO is basically an aspirational statement of policy and attitude more than it is a meaningful constraint. No one could sue the administration or invalidate a regulation it passed because it didn't comply with this EO.