Con Law Recording Two Flashcards
What are the two areas of Presidential related powers on the exam?
War time powers
and
Impeachment
What is the source for the President’s war time powers?
Article II, Section II - The President is the Commander-in-Chief of the Armed Forces
Does Congress also have war time powers?
Yes, under Article I, Congress has the power to declare war, maintain a navy, and to raise and support armies
ii. NOTE: Congress has right to declare war but does this mean Congress can send troops without saying ‘we declare war’?
iii. NOTE: Congress has only declared war five times in history
What is the War Powers Resolution / Act of 1973?
An effort by Congress to restrict the President’s war time power
Example: under the War Powers Resolution, the President cannot keep troops committed for longer than 60 days without Congress’s approval or Congress’s declaration of war
NOTE: Congress has only declared war five times in history.
What is the important note on the War Powers Act of 1973?
No President has ever recognized the War Powers Act as constitutional
Does the President have the authority to detain U.S. citizens deemed enemy combatants abroad and what is the case?
The President may detain U.S. citizens deemed enemy combatants so long as the person receives (1) notice of why they are being held, and (2) an opportunity to rebut those decisions before a neutral decision maker.
See Haamdi.
What is the policy in favor and against Presidential war time powers?
f. Policy in favor of Presidential war time powers
i. Respect language of Constitution
ii. President runs army and navy and has lens on the ground of risks
iii. Quick action needed in dangerous situations
g. Policy against Presidential war time powers
i. Commitment to due process is important
ii. Cannot sacrifice individual rights (to due process) just because country is in a dire situation
iii. Balance of national security versus commitments to individual liberty/freedom
What is the AUMF?
The Authorization for Use of Military Force
Congress enacted it just after September 2001, where the President is authorized to “use all necessary and appropriate force”
What is the source of the Suspension Clause?
Article I, Section 9
What is the Suspension Clause?
Under the Suspension Clause, Congress cannot suspend habeas rights unless in a case of rebellion or invasion and the public safety requires it
What is wrong with the CSRTs - war tribunals?
- P lacks access to evidence
- No evidentiary rules
(e.g., hearsay, evidence obtained through coercion, unsworn testimony, etc.)
What is the test for when a non-U.S. citizen detained abroad as an enemy combatant should receive habeas rights?
Three Factor Test
First, were the procedures used to determine the detainee’s citizenship and enemy status appropriate?
- NOTE: Whether detainee challenges status and response is inadequate
Second, is the nature of where the person is being held functionally the U.S.?
Third, are there practical concerns in granting the non-citizen habeas rights?
NOTE: The rights would require a full trial in the U.S.; time; resources; security personnel testifying
NOTE: Cuba is close but if they are in Afghanistan more expense/analysis changes
NOTE: If procedure not adequate, location is functionally the U.S. and no practical concerns, then weighs toward habeas rights
What is there no substitute for?
Habeas rights
What should Congress as an alternative to a statute stripping people of habeas rights?
Enact the Suspension Clause
What is the policy on suing or prosecuting the President?
Balance between presidential powers and abuse of discretion
Can the President be sued for something that occurred while the President was in office? What is the case?
No, the President is absolutely immune from civil or criminal suits for things done while the President was ACTING IN HIS OFFICIAL CAPACITY
See Fitzgerald
Note: Applies to future suits as well - there is absolute immunity
Note: Argue both sides on whether President was acting in his official capacity
What is the safeguard in place to balance the protection of absolute immunity for actions taken while acting under the Presidential capacity?
There are other checks in place
i. Public opinion, press, chance of getting reelected, Congress’s review
ii. Also, judicial economy, avoid these suits in place
Can the President be sued for something that he did before he was in office? What is the case?
Yes
No immunity
Drive accountability
Need cases to proceed
See Clinton
Must a President turn over communications in response to a subpoena as part of a criminal investigation?
Yes, so long as the information does not relate to national security, military secrets, diplomatic secrets, the President must turn the information over
NO executive privilege applies
NOTE: The executive privilege attaches to the office, not to the person, so when they leave there is no privilege
What is the source of the impeachment language in the Constitution?
Article II, Section 4
What does the impeachment language say?
The President, Vice President and all civil officers of the U.S. shall be removed from office on impeachment and conviction of treason, bribery, or other high crimes and misdemeanors.
What are the sole powers and three steps in the impeachment process and the process including % votes needed?
1) First, the House has the sole power to bring forward the articles of impeachment. A simple majority 50.1%+ is required.
2) Second, the Senate has the sole power to hear the case acting as jury. 2/3 of the Senate must agree to impeach the President.
3) Third, the Chief Justice of the Supreme Court has the power to preside over the case.
NOTE: Impeachment is the first step in the removal process and is not the President leaving
Where do you want to focus the argument on the exam?
Impeachment is for
- bribery
- treason
- or other high crimes or misdemeanors
Factors to weigh in on whether language should be more specific or not or whether crime fits on impeachment list
a. Connection between offense and ability to do the Presidential job;
b. Whether offense effects public at large (or just President personally);
c. While in office or before you were in office
