When Bob Hertzberg (Wiest Class, 1979) arrived at Cooley Law School in 1976, he was determined to overcome obstacles that had plagued his education since childhood. Now, the retired lawyer, who once argued in front of the United States Supreme Court, is giving back to the school that gave him his start in the legal profession.
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In his memorandum, the President asserts that he has unspecified “core powers,“ which are being abused by law firms and attorneys. He fails to identify these powers and their source. Contrary to his assertion, under the Constitution the President possesses only clearly delegated power; while most of the federal power is delegated to Congress.
The Context On March 14, 2025, President Trump issued a proclamation invoking the Alien Enemy Act1 to justify massive, immediate deportations of groups of allegedly illegal immigrants who came to the United States from Venezuela. These illegal immigrants were reportedly members of a terrorist group.
In Humphrey's Executor v. United States,[1] the Supreme Court of the United States ruled that a statutory restriction that provided a for-cause limitation on the removal of a Federal Trade Commission member was constitutional. The Federal Trade Commission Act limited the power of the President to remove a Commissioner to “inefficiency, neglect of duty, or malfeasance in office.”[2] The Court found that the statutory provision restricted the President’s removal power to those causes. It distinguished the recent decision of the same Court in Myers v. United States,[3] finding that the federal officer removed in Myers–a postmaster–was an executive officer restricted to the performance of executive functions, while the FTC Commissioner removed in Humphrey’s Executor acted in a quasi-legislative and quasi-judicial manner, and was not a purely executive officer. The Court held that the Commissioner could only be removed by the President for the causes listed in the Act. The limiting provision was constitutional.
About the Author: Don LeDuc is the retired president and dean of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.
After a national election that chose a new President, an election that took place in a closely divided nation, our new President has unleashed a continuing outpouring of initiatives. These have generated widespread debate and hand-wringing. The President’s initiatives and the debate surrounding them–coupled with the underlying division in our country–threaten our national stability, if not our country’s continued existence. These initiatives seem disorganized and lacking in reasoned support, while the debate they have engendered seems overblown and unfocused.
An oft-quoted cliche about a fast start is that someone “hit the ground running.” That certainly characterizes our new President and his blizzard of executive orders, directives, and announcements. On the other hand, a cliched criticism is that “fools rush in where angels fear to tread.” Both characterizations are apt regarding the President, as well as the commentary about the President’s actions, particularly media commentary.
The incoming President has proposed something called the Department of Government Efficiency (DOGE). The idea of “fixing” or “streamlining” the federal government is nothing new–nearly every president over the past one hundred years has sought to make the federal government more efficient by cutting out duplication, waste, and fraud. Nearly every president has failed to accomplish that objective.
This essay examines the power of the President to order that money appropriated by Congress should not be spent; put another way–can the President refuse to spend funds that Congress authorized to be spent? This essay presumes that the power of appropriation lies in Congress and that the power to spend appropriations lies in the executive branch, namely with the President.[1]
Current circumstances compel examination of the power of a President of the United States to nominate appointees and to fill vacancies that may happen during the recess of the Senate. The first context for analysis requires a look at two constitutional provisions regarding the President’s appointment power:
