Ii. Separation Of Powers

Front 1

Sources of Executive and congressional power

Back 1

Art I section 8 - Congress
Art II section 2 - President

Interstitial Rulemaking- Art I sec 8 clause 18 give congress the power to make agencies to fill in the spaces

Front 2

Enumerated powers

Back 2

Those powers that are explicit in the constitution: including:

Front 3

Art 1, sec 1

Back 3

Bicameral legislative - that there will be a senate and house

Front 4

Art I, sec 7 clause 3

Back 4

Presentment clause: a bill must be passed by both senate and house in identical form, then given to president to prove

Front 5

Art I sec 8 clause 1-17

Back 5

Congresses enumerated powers, including taxation

Front 6

Congress' Elastic Clause

Back 6

Art I sec 8 c 18 - not a source of power but it gives congress the power to execute all enumerated powers

Front 7

Inherent presidential powers

Back 7

Art II - Structure suggests that power vested in the president is broader than the enumerated powers granted to congress

Front 8

Structure of the executive branch

Back 8

Art II only creates the president and vice president, no discussion of the rest of the executive branch

Congress fleshes out the rest by statute

Front 9

Delegation of power from congress to executive branch

Back 9

Congress passes statutes to executive agencies to flesh out (interstital rule making)

Front 10

Schecter Poultry

Back 10

Congress can delegate its powers as long as the statute contains an intelligible standard to guide executive action (modern standard)

Front 11

Oversight Committies

Back 11

Congress reviews, monitors and supervises the federal branch, including agencies.
This avoids time consuming legislation to approve each rule and reg created be the agencies.

Front 12

Signing Statements

Back 12

If pres doesn't like all of a bill, he can add when he signs that he doesn't like part x, and even that he can tell his people not to enforce it

Front 13

Presidential Veto

Back 13

Checks and balances. The pres can veto the entire statute

Front 14

Legislative veto

Back 14

The idea that Congress could overrule the actions of the executive branch - no longer exists

Front 15

INS v. Chadha

Back 15

§ 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), authorized the INS to suspend deportation of an alien continually residing in the United States for at least seven years where the Attorney General, in his discretion, found that "deportation would ... result in extreme hardship." After such a finding by the Attorney General, he transmits a report to Congress pursuant to § 244(c)(1) and either house of Congress has the power to veto the Attorney General's determination pursuant to § 244(c)(2).
This was in violation of bicameralism, so now no more legislative veto
Weird because it's more quasijudical than federal

Front 16

Line Item Veto

Back 16

Struck down with Clinton v. City of New York
(the idea that pres could sign only parts of bills he liked)

Front 17

Presidential impoundment

Back 17

Pres doesn't HAVE to give money that congress authorizes to programs (ie nixon hated giving money to EPA)
Congress can nudge with impoundment control act

Front 18

Appointments of executive officers

Back 18

appointments are made by pres, (ambassadors, federal judges, officers for US)
Must be approved by senate.
Positions are created and funded by congress
Art 2 Section 2 Clause 2

Front 19

Inferior officers

Back 19

can be fired by an officer of the US. Congress can vest the power of appointment of inferior officers in others

Front 20

Removals of officers

Back 20

Pres can remove any officer at their discretion (unless there is a statute) Easiest to get rid of high ranking officers

Front 21

Removal of low ranking officers

Back 21

Congress can specify what grounds for dismissal should be, but they can't participate in removal process.

Front 22

Bowsher v. Synar

Back 22

State allowed comptroller general to make budget cuts if maximum defits were exceeded, and congress to remove comptroller general.

The statute gives congress unconstitutional power of an executive function because they shouldn't have the power to remove him from office

Front 23

Free Enterprise Fund v. Public Company Accounting Oversight Board

Back 23

Board members are inferior officers appointed by SEC commishs, SEC commissioners appt by prez. Members can be removed for cause, but the act doesn't give the prez any power to determine if cause exists. Unconstitutional violation of separation of powers.

Front 24

Effects of free enterprise fund

Back 24

Court is trying to address issue of over independance of independent agencies

Front 25

Statutory basis for Prez' inherent powers

Back 25

ART II sec 1: the executive power is vested in the prez
pres has inherent powers that are not specifically enumerated

Front 26

Youngstown v. Sawyer

Back 26

Pres issued executive order telling sec of commerce to take possession of steel mills to prevent a nationwide strike. Steel mills bring suit saying seizure wasn't authorized by any act of congress or constitutional provision
Scotus says it was unconstitutional but can't agree on why.
We're at war but it's a domestic issue, not an emergency?

Front 27

Jackson's Concurrence in Youngstown
"Three zones of Analysis"

Back 27

[Jackson's Three Zones of Analysis for Exec Action]
1. Congress explicitly or approves of the Exec action -> Constitution
2. "zone of twilight": Congress has neither approved nor disapproved of executive action -> constitutionality cannot be predetermined, depends on contemporary events and actions
3. Congress explicitly or implicitly disapproves of the exec action -> Exec action is unconst. UNLESS the Congressional action is itself unconst.
Three zones made into law by Dames and More v. Regan

Front 28

Dames & Moore v. Regan

Back 28

After iranian hostage situation carter blocks removal of all iranian goverment property from us. P brings against Iran because IRan banks owe him 3.5 million. Hostages are released in exchange for termination of all litigation between governments. Reagan suspends all claims

Holding: Pres is authorized to suspend litigation by informal executive agreement

Front 29

Executive conduct of Foreign Affairs

Back 29

Pres, as commander in chief, has broad powers to use american troops in foreign countries

Front 30

US v. Curtis-Wright

Back 30

Congress passes joint resolution stating that if he wants, Pres may make proclamation prohibiting sale of arms to bolivia/paraguay. D says embargo is unconstitutional
Pres Proclamations and congressional resolutions were valid exercises, but SCOTUS says more, that Pres has more discression in foreign afairs

Front 31

Treaties and Federal laws

Back 31

Coequal subordinates to the constitution, above executive agreements, which is above all state law

Front 32

Art II section 2

Back 32

Power to make treaties is expressly delegated to prez.

Front 33

Treaty

Back 33

an agreement between US and foreign country that is negotiated by Prez, ratified by senate

State laws can not conflict, if there is a conflict between treaty and fed statute, the latter prevails

Treaties can not conflict with constitution (see subordination)

Front 34

Executive agreement

Back 34

agreement that is between pres and foreign leader that senate doesnt ratify
-time is of the essence
-dont' want to recognize government or sanction their activities
involve matters that are not on the level of treaty signing

Front 35

Missouri v. Holland

Back 35

the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. The case revolved around the constitutionality of implementing the Migratory Bird Treaty Act of 1918.

This makes federal planary power unlimited?

Front 36

Reid v. Covert

Back 36

Defendants were civilian dependents of armed servicemen who murdered their husbands on the overseas bases where they were stationed. They were tried by court-martial under the Uniform Code of Military Justice (UCMJ), where they were tried without a grand jury or a jury trial. The dependents alleged that they were denied a right to a jury trial and right to have their indictment presented to a grand jury pursuant to the Constitution. The right to try civilian dependents on the overseas base was granted by treaty.

if you have a treaty which conflicts with a subsequent Congressional act, the Congressional act prevails over the treaty unless it violates the constitution

Pres can make treaties, but not free of the bill of rights

Front 37

American Insurance v. Garmendi

Back 37

Executive agreements are superior to state law

Front 38

Medellin v. Texas

Back 38

International Court of justice tells us that state courts are violating vienna convention by not notifying consuls when foreign nationals are arrested, and that these convictions should be reviewed.
Pres issues a memorandum stating that state courts should give effect to International Court decision. Medellin filed petition to have his conviction reviewed but state court denied

Holding: even if an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing.

Front 39

The War Powers Resolution

Back 39

Prez can introduce forces into hostilities without a declaration of war, but must notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.

One house veto mechanism? (Chadha???)

Front 40

Boumediene v. Bush

Back 40

Exec needs authority to detain people who pose real threats to national security, but not at ultimate cost of habeas corpus (but this is guantanamo, so sui generis)