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71 Cards in this Set

  • Front
  • Back
legislative powers
Article II- state of the union, recommend legislation, call congress into special session, adjourn congress
Art I Sec 7- veto legislation
Chief executive
Art II- appointment power, cabinet,to take care that the laws are faithfully executed
Head of State
Art II- commander-in-chief, treaty making, appt and recieve ambassadors
Judiciary Powers
Art II- grant reprieves and pardons, to appt judges, to faithfully execute the laws
Lockes Theory on Executive Prerogative
support for sep of powers but exec should at times execute broad powers for the public good
- "with the prescription of law and sometimes even against it"
Federalist #70
Hamilton
"energy in the executive"
-the C created a Pres and even though there is fear of monarchy, it is important to place the exec in one sent of hands for quick action and accountability
-four year term- continuity- not constantly thinking about re-election
-should be able to be re-elected as many times as possible, encourages faithful performance of duties
-the veto power- independent from congress
-electoral college leads to people of a certain stature to be selected
Stewardship Theory
Teddy Roosevelt
-inherent powers of the POTUS
-POTUS can take necessary actions for the public good UNLESS clearly prohibited by the constitution of laws of congress
Federalist #51
Madison
-ambition must counter ambition
-legislative authority must necessarily dominate
- SEP OF POWERS
Taft's Theory of Presidential Power
-inherent powers are limited and must be traceable to specific grants of power in the constitution or legislation
-agrees with federalist #51
U.S. v Curtiss-Wright- scenario
-1936
-congress delegated power to the president- who issued an embargo
-CW violates, claims this power to the president in violation of the nondelegation doctrine
Cases of the 1930's
U.S. v Curtiss-Wright
Humphrey's Executor v U.S
Scheter Poultry Corp v U.S.
Cases of the 19th Century
- The Prize Cases
-Ex Parte Milligan
-Mississippi v. Johnson
-In re Neagle (1890)
-
Cases of the 1920's
-Missouri v Holland
-Myers v. U.S.
Cases of the 1940's
-U.S. v Pink
-Korematsu v. U.S.
Cases of the 1950's
-Youngstown Sheet and Tube Co. v Sawyer
Cases of 1970's
Goldwater v Carter
New York Times co. v U.S.
U.S. v Nixon
Cases of the 1980's
Morrison v Olson
INS v Chadua
Cases of the 1990's- Present
U.S. v Alvarez-Machain
Clinton v City of New York
Clinton v Jones
Rasul v Bush
Hamdi v Rumsfield
US v CW - outcome
legal Q- can congress delegate powers to the executive?
-joint-resolution, Art II (faithful execution of the law)

A. IN MATTERS OF FOREIGN AFFAIRS, YES. ND doctrine applies only to domestic affairs. Why? b/c people give power to the legislature = one transaction. For the legislature to delegate that power to the president is in violation, but matters of FA are inherited directly and can therefore be delegated without being considered in violation
-Marshall- President 'sole organ' of external relations
Missouri v Holland- Facts
U.S. British treaty to protect migratory birds
Congress closes hunting season of various migratory birds, Missouri claims this is a violation of the 10th amendment (powers not delegated to fed, reserved for the states)
-Holland- game warden
Missouri v Holland- outcome
legal Q- is the treaty and the laws made in pursuant of it in violation of the constitution?
-10th amendment, Art 1 Sec 8, Art II, Art VI (supremacy clause)

-No violation, treaty of national concern
-state authority not exclusive of paramount powers
-wild birds temporarily within state borders, not owned by any one
Missouri v Holland- IMPLICATIONS
-fed laws can be made in pursuit of treaties. Provisions of the treaty are equivalent to national law
U.S. v Pink - facts
-1942
-President Roosevelt recognized the existence of Soviet Russia (1933) and negotiated the "Litnov Assignment" which allowed each side title to claims to assets rather than prosecute claims of citizens
-Gov't sought to recover through Russian insurance company based in NY
U.S. v Pink- outcome
Legal Q- is the U.S. government entitled to recover the assets of the NY branch of the Russian insurance company under this executive agreement?
U.S. v Belmont, Art II treaty making clause

- a state cannot reject part of foreign policy
-exec 'sole organ' of external affairs
U.S. v Pink- implications
Increased use of the executive agreement in order to circumvent treaty restrictions
-exec agreements have the same effect as treaties
U.S. v Alvarez-Machain- Facts
-1992
-U.S. forcibly kidnapped AM from Mexico in order to indict him for the murder of a DEA agent
-AM: U.S. does not have jurisdiction to indict him b/c they kidnapped in violation of U.S/Mexico extradition treaty
U.S. v Alvarez-Machain- Outcome
legal Q- does forcible abduction prohibit a trial in the U.S. for a violation of its criminal law?
Extradition treaty, 10th amendment, Art II

No, he may be tried in criminal court.
Treaty says nothing about abduction in these terms- TEXTUAL READING
U.S. v Alvarez-Machain- implications
reinterpretation of treaties prevails, more executive power
U.S. v Alvarez Machain- Dissenters
-Three dissenters
-all note that in Ker v Illinois (primary referenced case) ruling was not decided on a defendant in a governmental position.
-the court fails to distinguish between private citizens and government officials
-references Brandeis opinion in Cook v US
-"flagrant violation of Intl Law"
Cases Regarding Treaty Making Powers
- Missouri v Holland - established treaties as supreme law of the land
-U.S. v Pink- no state can pick and choose which AFP to follow
-Goldwater v Carter- dismissed on political question with regard to POTUS deciding to terminate a treaty
-U.S v. Alvarez-Machain- allowed greater executive interpretation of treaties
The Prize Cases- facts
-1863
-CW had not yet been declared officially, but there was an outbreak of rebellion. Lincoln ordered a blockade on the southern ports, claiming inherent powers
-Owners of ships- war had not yet been declared, over exertion of executive authority
The Prize Cases- Outcome
legal Q- Was Lincolns blockade constitutional?
-Art II (C in C), Art 1 sec 8 (congress declares war), Art II sec 3 (faithfully execute the laws), decisions of 1795 and 1807 (gives inherent power, authorization for calling militia to suppress insurrection)

-state of insurrection exists
-previous congressional laws give him the power to do this, can accept a challenge but not initiate one without congressional authority
The Prize Cases- implications
-broad interpretation of Constitution
-implies inherent powers
The Prize Cases- Dissenters
-Four
-the constitution specifically grants congress the power to raise armies to suppress insurrections and could have acted just as quickly as the POTUS
Ex Parte v Milligan- Facts
- 1866 (note: post CW)
- Lincoln suspends writ of habeus corpus- all persons disloyal to the union tried in military courts
-1863- congress passes legislation in accordance with this practice
-Milligan- sympathized w/confederacy who plotted to hamper the war effort, free prisoners
-INDIANA resident, not controversial state
-Milligan- violation of civil liberties
Ex Parte Milligan- Outcome
legal Q - Should he had been tried in a military tribunal? suspension of Habeus corpus acceptable?
-Art I, sec 9, 4th, 5th 6th amendment, Art II (execute laws)

Military tribunal unconstitutional proceedings for Indiana- fully functioning courts.
Milligan's civil liberties take precedence over martial law
Unanimous

HOWEVER - does not rule on constitutionality of suspension of writ of habeus corpus
Ex Parte Milligan- Implications
- more strict interpretation of presidential power
-shows that court did not want to give POTUS ultimate power during times of war (importance of timing- post war)
Korematsu v U.S.-Facts
-1944
-"military zones" established along west coast by executive order (congress approved)
-Korematsu- refused to leave his home, asserting no reason to question his loyalty to the U.S.
Korematsu v U.S.- Outcome
legal Q- is this exec order unconstitutional?
- 5th (due process), 14th (citizen rights) amendments, Art II (C in C), Exec Order, 1942 act

-Upheld executive order on grounds that national security outwieghs civil rights claimed
-Footnote Four- approached the "suspect class" with "strict scruitiny"
-war is an aggregate of hardships
-Hugo Black- maj opinion writer, liberal, later admits influence of public opinion
Korematsu v U.S.- Dissenters
- Three
-all claim it is an act of outright racism rather than military necessity
Rasul v Bush- Facts
-2 Australians, 12 Kuwaitis- detained in Afghanistan. Denied writs of habeus corupus on grounds that the courts 'lack jurisdiction'
Rasul v Bush- Outcome
Legal Q- do foreign nationals detained at Guantanamo bay have the right to due process of law?
-AUMF (gives president authority to use all necessary and appropriate force against those nations, persons, or organizations which are affiliated with the terrorist attacks), Judiciary Act 1789 (authorizes writs of habeus corpus to prisoners), 1903 lease agreement with Cuba, Art I Sec 9, Ex parte milligan, Eisentrager (ruled that court lacked authority to issue writs of HC), Braden v 30th circut (person held in territorial jurisdiction) fifth amendment

Ruling was that they had the right to due process. why?
- are not nationals of countries at war with U.S.
- deny plotting attacks against U.S.
- were never given access to tribunal
- they are held in territory over which the U.S. has sufficient control
Rasul v Bush- Dissents
-three dissenters
-Scalia
- Leave it to Congress to change the law. Judiciary overturning of holding is irresponsible
-Precedent of Eisentrager is applicable here
Hamdi v Rumsfield - Facts
-2004
-Hamdi- U.S. citizen, lived in Saudi Arabia since his youth, captured in Afghanistan with members of the North Alliance
-Claims right to due process
-gov't classifies him as "enemy combatant"
Hamdi v Rumsfield- Outcome
legal Q- can the executive detain an individual as an enemy combatant? Does this enemy combatant have the right to due process?
-AUMF, Art II, Art 118 of the Geneva Convention, Ex parte Miligan, 5th amendment, Art I sec 9

- can be a considered an enemy combatant but must be afforded the right to due process.
-active combat- therefore detainable
-'enemy combatant- necessary and appropriate use of force

-due process b/c he is still a citizen of the U.S. 6:3 vote

-no violation of sep of powers
Cases of War-Making Powers
-The Prize Cases (1863)- gives pres inherent powers, broad interpretation
-Ex Parte Milligan (1866) - check on Presidential power
-Korematsu v U.S (1944).- broad interpretation, denial of civil liberties and property rights in "defense of the public good"
-Rasul v Bush (2004)- establishes courts jurisdiction over foreign nationals, their ability to apply for judicial review as to why they are being detained
-Hamdi v U.S. (2004) allows definition of "enemy combatant" and detainment of such but hold that citizens have a right to an attorney and to contest the basis for their detention before an independent tribunal
Youngstown Sheet and Tube Co v Sawyer-facts
-1952, during 'undeclared' Korean war
-Steel mill workers strike to shut down factory
-Truman issues exec order direct sec of commerce, sawyer, to seize and operate the mills claiming that it is a necessary action in the state of war, an inherent power supported by precedent
-Mill owners- law making power resides in congress, president's actions unconstitutional
Youngstown Sheet and Tube Co v Sawyer- outcome
legal Q- does the president have the authority as C in C during times of war to interfere with commerce?
-Taft-Hartley Act ( rejected by congress but would have authorized such governmental seizures during times of war), Exec Order 10340, Art II C in C, faithfully execute the laws, Fifth Amendment, Art I

Maj Opinion (Black, liberal)
-president only has specified powers
- no inherent powers
-power comes from the consitution or congress
-legislative history
-expanding "theater of war" not enough justification
Youngstown Sheet and Tube Co v Sawyer- concurring opinions
Frankfurter- cites Marshall in the necessity of "expounding the constitution," history - court has allowed seizure of commerce but only under very grave circumstances
-Clark- But-For the Taft Hartley act
-Douglas- fifth amendment. only congress can take property
-
Youngstown Sheet and Tube Co v Sawyer- Dissenting Opinion
-they argue that the country just got out of WWII and now there is another devastating event- Korea
-not arbitrary, president informed congress of his actions
-just because there isn't a law authorizing it doesn't mean that President cannot do so in the interest of protecting nat'l security
New York Times co v U.S. - Facts
- 1971
-Pres Nixon did not want confidential information released regarding Vietnam Policy, but NYtimes argues freedom of the press
New York Times co v U.S.- Outcome
legal Q- violation of first amendment?
-first amendment v art II
- issue of prior restraint- legal documentation of no legal restratint on the press of government wanting private information released to public before the fact

Maj opinion
-civil liberties prevail
-there is no prior restriant here
-Justice Douglass- secrecy in govt is undemocratic
-Justice Marshall- notes how injunctions are issued to stop the actions of an unconstitutional law but here there is no law to enjoin
-Stewart and White- if there is irreparable damage, then an injunction can be issued
New York Times co v US- dissents
Burger and Blackmun- is it possible to say that there really was no irreparable damage from publication?
Harlan- this is a political question
Myers v U.S.- facts
1926
Wilson removes Myers, postmaster in Oregon, Myers sues to recover his losses, challenges constitutonality of Wilsons actions
Myers v U.S.- Outcome
Legal Q- Does the president have the authority to remove appointed officers without consent of the senate?

-Tenure of Office Act 1867, 1789 legislation, 1876 statute, Art II (appt powers), Art I

Majority opinion
1876 law that prohibits president from removing postmasters- unconstitutional
-the power to remove is incident to the power to appoint
- superior officers- removable solely by the President
-President must execute the laws with the assistance of subordinates. If he cannot work with his subordinates than he is obligated to fire them
Myers v U.S.- Dissenters
- McReynolds- literal reading of constitution
Brandeis- relies of sep of powers to say that each branch is not completely autonomous
Holmes- power to execute the law doesnt allow president to go beyond law of congress
Myers v U.S.- significance
Taft- expansive view, why?
-strict constructivist
Humphrey's executioner v. U.S. - Facts
-1934
- FDR asks conservative Humphrey to resign from commissioner of FTC
-Humphrey does so, dies shortly after, executioner of his estate sues for compensation of salary
Humphrey's executioner v U.S.- Outcome
Legal Q- is humphrey solely removable by the executive?
- FTC act, 1789 decision, Art II
Maj Opinion- FDR in the wrong
- Humphrey held quasi legislative, quasi judicial position --> non partisan, free fome executive control, meant exercise judgement of governement,
- unanimous
Morrison v Olson- Facts
1988
-AG, Olson challenges the constitutionality of Morrisons appt to a position on an independent counsel by the previous AG. As a special prosecter, Morrison resides in the exec branch
Morrison v Olson- Outcome
legal Q- is morrison inferior or principal:?
Does the act violated the seperation of powers by interfering with exec branch?
- Art II, Art III, Ethics of Govt Act 1973, Myers

-Maj opinion- b/c Morrison removable by AG, she is an inferior officer such that Congress is able to invest appointment of special prosecutor in which brach it deems apropriate --> no violation of sep of powers
Morrison v Olson- Dissent
7:1 - Scalia dissent
-strict interpretation of powers
- law deprived the president of substantial control over prosecutal proceedings
-critizes cour for its reliance on legislative history
Why Morrison and not Myers
morrison not "purely" executive
Schecter Poutltry v U.S- Facts
-1935
-Schecters- claim violation of nondelegation doctrine by National Recover Act's attempt to regulate intrastate commerce
Schecter Poultry v U.S.- Outcome
Legal Q- can congress delegate this law making authority to the exec?
-NIRA, Art I sec 8, nondelegati doctrine, Art I sec I, interstate commerce act, FTC act

Major Opinion- unianimous, congress can delegate so long as it sets limits. sided w/ schecters on account of the case being an issue of intrastate commerce and therefore out of congressional jurisdiction and there were no limits set on the power delegated to exec branch

-court did not establish procedures or standards, just alloted that ablity to executive
Schecter Poultry v U.S.- Implications
led to the legslative veto- congress delegates power to exec but can veto legislation
INS v Chadha - facts
1983
Chadha admitted to U.S. on student visa but it had expired.INS director needed justification as to why he should not be deported. Chadua requests to apply for a suspension of deportation, granted but all suspension requests must go to House of Reps so that they can have the option of reviewing and possibly vetoing requests - denied Chadha his request
-Chadha- legislative veto- unconstitutional
INS v Chadha- outcome
legal Q- Does the legislative veto violate the separation of powers?

Majo Opinion
-violates bicameralis in Art I sec 1 and 7
-violates presentment clause in Art I sec 7
-efficency does not justify these violations
INS v Chadha- Dissents
-no legislative tyranny here
-efficency is a good reason
-allows for the executive to be accountable
-ruling affects over 200 laws
Clinton v City of NY
1998
Legal Q- is the line-item veto unconstitutional delegation of power to the exec?

Maj Opinion: violates the presentment clause, Art I sec 7.
Legislation is approved as a whole by both houses
Amendment process- Art V
Clinton v City of NY- Dissent
Line item veto limited to the budget, no aggrandizement of executive power