Con Law Recording Two

Question 1

What are the two areas of Presidential related powers on the exam?

Answer 1

War time powers
and
Impeachment

Question 2

What is the source for the President’s war time powers?

Answer 2

Article II, Section II - The President is the Commander-in-Chief of the Armed Forces

Question 3

Does Congress also have war time powers?

Answer 3

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

Question 4

What is the War Powers Resolution / Act of 1973?

Answer 4

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.

Question 5

What is the important note on the War Powers Act of 1973?

Answer 5

No President has ever recognized the War Powers Act as constitutional

Question 6

Does the President have the authority to detain U.S. citizens deemed enemy combatants abroad and what is the case?

Answer 6

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.

Question 7

What is the policy in favor and against Presidential war time powers?

Answer 7

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

Question 8

What is the AUMF?

Answer 8

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”

Question 9

What is the source of the Suspension Clause?

Answer 9

Article I, Section 9

Question 10

What is the Suspension Clause?

Answer 10

Under the Suspension Clause, Congress cannot suspend habeas rights unless in a case of rebellion or invasion and the public safety requires it

Question 11

What is wrong with the CSRTs - war tribunals?

Answer 11

• P lacks access to evidence
• No evidentiary rules
  (e.g., hearsay, evidence obtained through coercion, unsworn testimony, etc.)

Question 12

What is the test for when a non-U.S. citizen detained abroad as an enemy combatant should receive habeas rights?

Answer 12

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

Question 13

What is there no substitute for?

Answer 13

Habeas rights

Question 14

What should Congress as an alternative to a statute stripping people of habeas rights?

Answer 14

Enact the Suspension Clause

Question 15

What is the policy on suing or prosecuting the President?

Answer 15

Balance between presidential powers and abuse of discretion

Question 16

Can the President be sued for something that occurred while the President was in office? What is the case?

Answer 16

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

Question 17

What is the safeguard in place to balance the protection of absolute immunity for actions taken while acting under the Presidential capacity?

Answer 17

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

Question 18

Can the President be sued for something that he did before he was in office? What is the case?

Answer 18

Yes
No immunity
Drive accountability
Need cases to proceed

See Clinton

Question 19

Must a President turn over communications in response to a subpoena as part of a criminal investigation?

Answer 19

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

Question 20

What is the source of the impeachment language in the Constitution?

Answer 20

Article II, Section 4

Question 21

What does the impeachment language say?

Answer 21

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.

Question 22

What are the sole powers and three steps in the impeachment process and the process including % votes needed?

Answer 22

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

Question 23

Where do you want to focus the argument on the exam?

Answer 23

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