Cases- Separation of Powers

Question 1

Justice Jackson’s Concurring opinion, Youngstown Sheet & Tube Co. v. Sawyer (1952)

Answer 1

First Tier:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.
Includes all power he possess under Article 2
Plus any power Congress delegates to him
Court should review actions in this tier with “strongest presumption” of constitutionality
“…the burden of persuasion would rest heavily upon any who might attack it.”

Third Tier:
When the President takes measures incompatible with the expressed or implied will of congress, his power is at the lowest.
Only relies on his own Article 2 powers, minus any congressional powers over the matter.
Court should “scrutinize” action with “caution”
Truman’s Article 2 powers do not sustain the seizure of the steel mills
And, Truman is acting in defiance of Congress
“Presidential claim to a power.. must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
President has to clearly show that his article 2 powers clearly prove he can take measures

Second Tier:
When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent Article 2 powers
“Medium” level of power
Court must rely on the circumstances of action (e.g. practical considerations)

Question 2

The Price Cases (1863) Tier three
Legal Question: Does the President have the right to institute a blockade of ports without Congressional approval?

Answer 2

Truman’s Article 2 powers do not sustain the seizure of the steel mills. And, Truman is acting in defiance of Congress. Congress declares war not the President.

Question 3

Ex Parte Milligan (1866) (Suspension of Habeas corpus and martial law)
Legal Question: Can the President legally arrest and try civilians in military tribunals?

Answer 3

No; a law is needed to justify the creation of military tribunals. Trials require judicial power, conferred by congress. Tribunals cannot be sustained by the mandate of the President.

Question 4

Ex Parte Quirin (1942) Tier 1

Answer 4

FDR ordered Nazi saboteurs to be tried by a military tribunal. Congress, through Articles of War, explicitly provided that military tribunals have jurisdiction to try offenses. Saboteurs are unlawful combatants therefore they were subject to detention and punishment by military tribunal. Citizenship of an “enemy belligerent” does not prevent him from the consequences of violating the law of war.

Question 5

Korematsu v. U.S. (1944) Tier 1
Legal Question: Is it beyond the war power of government to order the relocation of Japanese Americans?

Answer 5

Deals with strict scrutiny: Proper measures were taken to protect from an invasion of the west coast.

Question 6

Zivotofsky v. Kerry (2015) Third Tier
Legal questions:
Whether the President has the executive power to grant formal recognition to a foreign sovereign?
If he has the power, can Congress command the President and his secretary of State to issue a formal statement that contradicts his recognition power?

Answer 6

The President’s asserted power must be both “exclusive” and “conclusive” on the issue. The Court must scrutinize to ensure the Constitution grants the power to the President alone. I.e., Congress is disabled over the asserted power. The reception
The Constitution grants the President power to recognize foreign nations since the country must speak in “one voice”. Congress does not have this power, therefore, the president has this power unilaterally and exclusively.