Example of instantiated powers of the President as a result of an enumerated power.
The pocket Veto. To neither approve nor disapprove of a bill while Congress is adjourned effectively kills the bill and removes the veto override ability of Congress.
Recess appointment. The Constitution say's the President can make appointments while Congress is in recess. Common reasoning tells us its so that the President always has the ability to appoint and is not impeded by Congress being in recess. Yet Presidents use this as a tool to make appointments without advice and consent (for at least a year) and it's perfectly Constitutional because it is an instantiated power.
AMENDMENT XX Passed by Congress March 2, 1932. Ratified January 23, 1933.
Section 3
and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Those things are expressly stated in the Constitution.
Pocket veto: Article I, Section 7: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unltess the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
Recess appointments: Article II, Sec 2: “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.”
In those instances the President is operating within express parameters given by the Constitution. To be comparable to the idea of Congress being able to reject electoral votes even though the Constitution merely gives authority to COUNT them, and statute expressly says they may NOT reject any electoral votes that are certified by their State, you’d have to have the President say that because the Constitution says he can make recess appointments, he decides instead to use the recess to CREATE a whole ‘nother Cabinet post, even though there is a statute saying that when the President makes recess appointments he may never create a new Cabinet post.
If Mom gives you permission to eat one cookie that can NOT be construed to mean she gives you permission to eat the whole cookie jar. Especially if she puts Dad in charge of overseeing the process and he says, “No cookie other than the one you had permission to eat may be eaten.”
Also, Congress DID provide BY LAW for the instance in which neither the President nor Vice President qualifies. That is 3USC Section 19, which Greg talked about because it uses the word “qualifies” repeatedly. That’s not saying that Congress has the right to say which person will be President every time it comes up. It is saying that Congress decides in advance the protocol for Presidential succession, and then it happens automatically.
If the right of duty devolved to somebody in the line of succession who was Constitutionally disabled from acting as President and that person still tried to act as President, the courts would have to determine that the person was not able to act as President, because it is a case or controversy arising out of the Constitution and laws. Who would have standing to bring that suit? Whose business it it, if the Constitution and a US law are broken and as a result we end up with an ineligible Commander-in-Chief and chief executive in charge of all appointments to agencies that regulate every facet of our individual lives? Whose business is it? Who suffers a grievance that deserves redress according to the First Amendment?