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85 Cards in this Set

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Why have separation of powers?
Avoid centralization of power and prevent a tyrannical form of govt. However, not meant to be airtight, there will be some mixing
Presidential powers
Article II Section 1: Executive power shall be vested in a prez.
a. Enumerates specific powers in Article II Section 2
Exec order? *exec encroachment on legis powers
An order issued by or on behalf of the president, usually intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow
Where does Executive Power usually stem from? *exec encroachment on legis powers
Powers pursuant to enforcing statutes or exercising power delegated to him by Congress
Inherent executive powers? *exec encroachment on legis powers
i. Ability of the President to act without express constitutional or statutory authority
ii. Power not enumerated in Article II
Debate surrounding inherent powers. *exec encroachment on legis powers
i. Article II vests executive power without qualification
ii.Conversely, Article I states all legislative powers herein granted shall be vested in a congress…
More about the Debate (re Madison and Hamilton. *exec encroachment on legis powers
1.Debate raged over whether the framers intended to create inherent presidential powers and whether he has authority not specifically delineated in the Constitution
a.Madison: president has no powers that are not enumerated in Article II
b.Hamilton: Difference in the wording reveals the framers’ intention to create inherent presidential powers.
We saw in Black's majority opinion about collective bargaining steel a certain approach, talk about it. *exec encroachment on legis powers, presidential seizure
Formalistic approach. There is no inherent presidential authority to issue an exec order. The pres may only act pursuant to express or clearly implied statutory or C'l authority. Cut and dry, no overlap
We saw a different approach in Frankfurter's opinion. *exec encroachment on legis powers, , presidential seizure
Introduces a more flexible (functional) and broad approach
1.State that the ordinances of the Constitution do not establish or divide fields of black and white.
Holding: Prez may take any action not prohibited by the C or a statute or if history or common practice allows the action
So, why did Frankfurter concur with Black? *exec encroachment on legis powers, presidential seizure
CS spoke clearly in Taft Hartley Act. Said: prez may not seize in this situation
Talk about Jackson's concurrence with respect to the steel case. *exec encroachment on legis powers
Flexible (functional) approach using famous tripartite analysis. States the prez powers are not fixed but fluctuate
Talk about Jackson's 1st simplied zone of presidential authority. *exec encroachment on legis powers, presidential seizure
1.When President acts pursuant to an express or implied authorization of congress
a.His Authority is at a maximum
b.Has article II power and all power congress can delegate
c.ACTIONS ARE PRESUMPTIVELY CONSTITUTIONAL
Talk about Jackson's 2nd simplied zone of presidential authority. *exec encroachment on legis powers, presidential seizure
2.When the President acts in absence of either a congressional grant or denial of authority
a.He can only rely on his own Article II powers
b.May be a ZONE OF TWILIGHT where either:
i.He and Congress have concurrent authority, or
ii.Where distribution is uncertain
c.CONSTITUTIONALITY DEPENDS ON: events and contemporary imponderables rather than abstract theories of law
Talk about 3rd zone of Prez authority. *exec encroachment on legis powers, presidential seizure
3.When President takes measures incompatible with the Expressed or Implied Will of Congress
a.His Power is at its lowest
b.Rely on Article II power minus Congress’s powers
I.Courts can sustain only by disabling Congress from acting on the subject
C.CLAIM TO POWER MUST BE SCRUTINIZED WITH CAUTION
Where did the Prez's seizure of steel mills fit according to Jackson? *exec encroachment on legis powers, presidential seizure
Third category
Why have separation of powers?
Avoid centralization of power and prevent a tyrannical form of govt. However, not meant to be airtight, there will be some mixing
Presidential powers
Article II Section 1: Executive power shall be vested in a prez.
a. Enumerates specific powers in Article II Section 2
Exec order? *exec encroachment on legis powers
An order issued by or on behalf of the president, usually intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow
Where does Executive Power usually stem from? *exec encroachment on legis powers
Powers pursuant to enforcing statutes or exercising power delegated to him by Congress
Inherent executive powers? *exec encroachment on legis powers
i. Ability of the President to act without express constitutional or statutory authority
ii. Power not enumerated in Article II
Debate surrounding inherent powers. *exec encroachment on legis powers
i. Article II vests executive power without qualification
ii.Conversely, Article I states all legislative powers herein granted shall be vested in a congress…
More about the Debate (re Madison and Hamilton. *exec encroachment on legis powers
1.Debate raged over whether the framers intended to create inherent presidential powers and whether he has authority not specifically delineated in the Constitution
a.Madison: president has no powers that are not enumerated in Article II
b.Hamilton: Difference in the wording reveals the framers’ intention to create inherent presidential powers.
We saw in Black's majority opinion about collective bargaining steel a certain approach, talk about it. *exec encroachment on legis powers, presidential seizure
Formalistic approach. There is no inherent presidential authority to issue an exec order. The pres may only act pursuant to express or clearly implied statutory or C'l authority. Cut and dry, no overlap
We saw a different approach in Frankfurter's opinion. *exec encroachment on legis powers, , presidential seizure
Introduces a more flexible (functional) and broad approach
1.State that the ordinances of the Constitution do not establish or divide fields of black and white.
Holding: Prez may take any action not prohibited by the C or a statute or if history or common practice allows the action
So, why did Frankfurter concur with Black? *exec encroachment on legis powers, presidential seizure
CS spoke clearly in Taft Hartley Act. Said: prez may not seize in this situation
Talk about Jackson's concurrence with respect to the steel case. *exec encroachment on legis powers
Flexible (functional) approach using famous tripartite analysis. States the prez powers are not fixed but fluctuate
Talk about Jackson's 1st simplied zone of presidential authority. *exec encroachment on legis powers, presidential seizure
1.When President acts pursuant to an express or implied authorization of congress
a.His Authority is at a maximum
b.Has article II power and all power congress can delegate
c.ACTIONS ARE PRESUMPTIVELY CONSTITUTIONAL
Talk about Jackson's 2nd simplied zone of presidential authority. *exec encroachment on legis powers, presidential seizure
2.When the President acts in absence of either a congressional grant or denial of authority
a.He can only rely on his own Article II powers
b.May be a ZONE OF TWILIGHT where either:
i.He and Congress have concurrent authority, or
ii.Where distribution is uncertain
c.CONSTITUTIONALITY DEPENDS ON: events and contemporary imponderables rather than abstract theories of law
Talk about 3rd zone of Prez authority. *exec encroachment on legis powers, presidential seizure
3.When President takes measures incompatible with the Expressed or Implied Will of Congress
a.His Power is at its lowest
b.Rely on Article II power minus Congress’s powers
I.Courts can sustain only by disabling Congress from acting on the subject
C.CLAIM TO POWER MUST BE SCRUTINIZED WITH CAUTION
Where did the Prez's seizure of steel mills fit according to Jackson? *exec encroachment on legis powers, presidential seizure
Third category
What is a treaty
*exec encroachment on legis powers, exec authority over foreign and military affairs
Agreement between the United States and a foreign country that is negotiated by the prez and is effective when ratified by the Senate.
What is a treaty
*exec encroachment on legis powers, exec authority over foreign and military affairs
Agreement between the United States and a foreign country that is negotiated by the prez and is effective when ratified by the Senate.
What is an executive agreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
Pretty much same thing, no Sentate Ratification necessary.a. An agreement between the US and a foreign country that is effective when signed by the president and the head of the other government
i.NO SENATE RATIFICATION IS NECESSARY
What is an executive agreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
Pretty much same thing, no Sentate Ratification necessary.a. An agreement between the US and a foreign country that is effective when signed by the president and the head of the other government
i.NO SENATE RATIFICATION IS NECESSARY
Does an executive agreement take precedent over a/t?*exec encroachment on legis powers, exec authority over foreign and military affairs
Takes precedence over conflicting state policy under the Supry Clause
Does an executive agreement take precedent over a/t?*exec encroachment on legis powers, exec authority over foreign and military affairs
Takes precedence over conflicting state policy under the Supry Clause
When will an executive agreement be invalid? *exec encroachment on legis powers, exec authority over foreign and military affairs
Unless violating another C'l provision or a federal statute
Where does power to make an executive agreement come from? *exec encroachment on legis powers, exec authority over foreign and military affairs
Not mentioned in C but well established they are C'l.
When will an executive agreement be invalid? *exec encroachment on legis powers, exec authority over foreign and military affairs
Unless violating another C'l provision or a federal statute
What to do on exam if there is an executive aggreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
i.Apply tests from Jackson's tripartite concurrence.
1.If in zone of twilight see:
a.if there is congressional acquiescence (ie they haven't opposed it)
b.Does it deal with foreign affairs: need to speak with one voice
c.History of allowing this type of thing to happen.
Where does power to make an executive agreement come from? *exec encroachment on legis powers, exec authority over foreign and military affairs
Not mentioned in C but well established they are C'l.
What is a treaty
*exec encroachment on legis powers, exec authority over foreign and military affairs
Agreement between the United States and a foreign country that is negotiated by the prez and is effective when ratified by the Senate.
What to do on exam if there is an executive aggreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
i.Apply tests from Jackson's tripartite concurrence.
1.If in zone of twilight see:
a.if there is congressional acquiescence (ie they haven't opposed it)
b.Does it deal with foreign affairs: need to speak with one voice
c.History of allowing this type of thing to happen.
Talk about Dames and Moore v. Regan. How are these cases different than steel case? *exec encroachment on legis powers, exec authority over foreign and military affairs
Recent example of SC upholding exec agreement. D/f outcome than steel. Deal with foreign affairs: greater need for "nation to speak with one voice"
What is an executive agreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
Pretty much same thing, no Sentate Ratification necessary.a. An agreement between the US and a foreign country that is effective when signed by the president and the head of the other government
i.NO SENATE RATIFICATION IS NECESSARY
Talk about Dames and Moore v. Regan. How are these cases different than steel case? *exec encroachment on legis powers, exec authority over foreign and military affairs
Recent example of SC upholding exec agreement. D/f outcome than steel. Deal with foreign affairs: greater need for "nation to speak with one voice"
Facts of Dames and Moore v. Regan and holding. *exec encroachment on legis powers, exec authority over foreign and military affairs
two dudes challenged Carter's exec agreement that provided end to suits pending against IRAN in US courts. Prez in response to national emergency, suspend outstanding claims in us court by exec order
Does an executive agreement take precedent over a/t?*exec encroachment on legis powers, exec authority over foreign and military affairs
Takes precedence over conflicting state policy under the Supry Clause
Dames and Moore v. Regan narrow or broad holding? *exec encroachment on legis powers, exec authority over foreign and military affairs
Narrow:Limited to sits where the settlement is a necessary element of a resolution of a major foreign policy dispute between our country and another and where CS has acquiesced in the Prez’s power
When will an executive agreement be invalid? *exec encroachment on legis powers, exec authority over foreign and military affairs
Unless violating another C'l provision or a federal statute
Facts of Dames and Moore v. Regan and holding. *exec encroachment on legis powers, exec authority over foreign and military affairs
two dudes challenged Carter's exec agreement that provided end to suits pending against IRAN in US courts. Prez in response to national emergency, suspend outstanding claims in us court by exec order
Where does power to make an executive agreement come from? *exec encroachment on legis powers, exec authority over foreign and military affairs
Not mentioned in C but well established they are C'l.
Dames and Moore v. Regan narrow or broad holding? *exec encroachment on legis powers, exec authority over foreign and military affairs
Narrow:Limited to sits where the settlement is a necessary element of a resolution of a major foreign policy dispute between our country and another and where CS has acquiesced in the Prez’s power
What to do on exam if there is an executive aggreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
i.Apply tests from Jackson's tripartite concurrence.
1.If in zone of twilight see:
a.if there is congressional acquiescence (ie they haven't opposed it)
b.Does it deal with foreign affairs: need to speak with one voice
c.History of allowing this type of thing to happen.
With Dames and Moore case, which zone of authority? *exec encroachment on legis powers, exec authority over foreign and military affairs
Zone 1 becuase series of fed statutes authorized prez's actions to nullify liens. Also history of exec suspensions of claims
With Dames and Moore case, which zone of authority? *exec encroachment on legis powers, exec authority over foreign and military affairs
Zone 1 becuase series of fed statutes authorized prez's actions to nullify liens. Also history of exec suspensions of claims
Talk about Dames and Moore v. Regan. How are these cases different than steel case? *exec encroachment on legis powers, exec authority over foreign and military affairs
Recent example of SC upholding exec agreement. D/f outcome than steel. Deal with foreign affairs: greater need for "nation to speak with one voice"
What was the Prez's main argument. *exec encroachment on legis powers, exec authority over foreign and military affairs
CS had acquiesced. A systematic unbroken executive practice long pursued to the knowledge of CS and never b/f questioned may be treated as a gloss on 'exec power' vested in prez by Sec 1 of the Article
What was the Prez's main argument. *exec encroachment on legis powers, exec authority over foreign and military affairs
CS had acquiesced. A systematic unbroken executive practice long pursued to the knowledge of CS and never b/f questioned may be treated as a gloss on 'exec power' vested in prez by Sec 1 of the Article
Facts of Dames and Moore v. Regan and holding. *exec encroachment on legis powers, exec authority over foreign and military affairs
two dudes challenged Carter's exec agreement that provided end to suits pending against IRAN in US courts. Prez in response to national emergency, suspend outstanding claims in us court by exec order
Why is there ambiguity about the prez's powers in war?
*exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Framers design
i. Congress: article 1 Section 8 clause 11: grants CS power to declare war. Clause 12-13: raise and support the army and navy
ii. Executive: Article 2 Clause 2: makes prez commander in chief of the army
Why is there ambiguity about the prez's powers in war?
*exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Framers design
i. Congress: article 1 Section 8 clause 11: grants CS power to declare war. Clause 12-13: raise and support the army and navy
ii. Executive: Article 2 Clause 2: makes prez commander in chief of the army
Dames and Moore v. Regan narrow or broad holding? *exec encroachment on legis powers, exec authority over foreign and military affairs
Narrow:Limited to sits where the settlement is a necessary element of a resolution of a major foreign policy dispute between our country and another and where CS has acquiesced in the Prez’s power
Talk about zone of twilight and Prez CS and use of armed forces.*exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Zone of twi b/t the exec and legislature
Talk about zone of twilight and Prez CS and use of armed forces.*exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Zone of twi b/t the exec and legislature
Talk about declaration of war. *exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Although CS declares war, US has often deployed military forces without a formal declaration of war. CS has only declared war 5 times (last time WWII)
Talk about declaration of war. *exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Although CS declares war, US has often deployed military forces without a formal declaration of war. CS has only declared war 5 times (last time WWII)
With Dames and Moore case, which zone of authority? *exec encroachment on legis powers, exec authority over foreign and military affairs
Zone 1 becuase series of fed statutes authorized prez's actions to nullify liens. Also history of exec suspensions of claims
Can a Prez just unilaterally commit Nation to War? *exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Usually CS has passed resolution authorizing military force. Ex Afghanistan. Resolution after 911 where CS authorized Prez to use "all necessary and appropriate force" against those nations, organizations, or presons he determined planned, etc.
What was the Prez's main argument. *exec encroachment on legis powers, exec authority over foreign and military affairs
CS had acquiesced. A systematic unbroken executive practice long pursued to the knowledge of CS and never b/f questioned may be treated as a gloss on 'exec power' vested in prez by Sec 1 of the Article
Can a Prez just unilaterally commit Nation to War? *exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Usually CS has passed resolution authorizing military force. Ex Afghanistan. Resolution after 911 where CS authorized Prez to use "all necessary and appropriate force" against those nations, organizations, or presons he determined planned, etc.
Why is there ambiguity about the prez's powers in war?
*exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Framers design
i. Congress: article 1 Section 8 clause 11: grants CS power to declare war. Clause 12-13: raise and support the army and navy
ii. Executive: Article 2 Clause 2: makes prez commander in chief of the army
Talk about zone of twilight and Prez CS and use of armed forces.*exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Zone of twi b/t the exec and legislature
What is a treaty
*exec encroachment on legis powers, exec authority over foreign and military affairs
Agreement between the United States and a foreign country that is negotiated by the prez and is effective when ratified by the Senate.
Talk about declaration of war. *exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Although CS declares war, US has often deployed military forces without a formal declaration of war. CS has only declared war 5 times (last time WWII)
What is an executive agreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
Pretty much same thing, no Sentate Ratification necessary.a. An agreement between the US and a foreign country that is effective when signed by the president and the head of the other government
i.NO SENATE RATIFICATION IS NECESSARY
Does an executive agreement take precedent over a/t?*exec encroachment on legis powers, exec authority over foreign and military affairs
Takes precedence over conflicting state policy under the Supry Clause
Can a Prez just unilaterally commit Nation to War? *exec discretion in times of War and Terror; the Prez, CS, and the use of Armed Forces
Usually CS has passed resolution authorizing military force. Ex Afghanistan. Resolution after 911 where CS authorized Prez to use "all necessary and appropriate force" against those nations, organizations, or presons he determined planned, etc.
When will an executive agreement be invalid? *exec encroachment on legis powers, exec authority over foreign and military affairs
Unless violating another C'l provision or a federal statute
Where does power to make an executive agreement come from? *exec encroachment on legis powers, exec authority over foreign and military affairs
Not mentioned in C but well established they are C'l.
What to do on exam if there is an executive aggreement? *exec encroachment on legis powers, exec authority over foreign and military affairs
i.Apply tests from Jackson's tripartite concurrence.
1.If in zone of twilight see:
a.if there is congressional acquiescence (ie they haven't opposed it)
b.Does it deal with foreign affairs: need to speak with one voice
c.History of allowing this type of thing to happen.
Talk about Dames and Moore v. Regan. How are these cases different than steel case? *exec encroachment on legis powers, exec authority over foreign and military affairs
Recent example of SC upholding exec agreement. D/f outcome than steel. Deal with foreign affairs: greater need for "nation to speak with one voice"
Facts of Dames and Moore v. Regan and holding. *exec encroachment on legis powers, exec authority over foreign and military affairs
two dudes challenged Carter's exec agreement that provided end to suits pending against IRAN in US courts. Prez in response to national emergency, suspend outstanding claims in us court by exec order
Dames and Moore v. Regan narrow or broad holding? *exec encroachment on legis powers, exec authority over foreign and military affairs
Narrow:Limited to sits where the settlement is a necessary element of a resolution of a major foreign policy dispute between our country and another and where CS has acquiesced in the Prez’s power
With Dames and Moore case, which zone of authority? *exec encroachment on legis powers, exec authority over foreign and military affairs
Zone 1 becuase series of fed statutes authorized prez's actions to nullify liens. Also history of exec suspensions of claims