Executive Authority Flashcards
What are the powers the president?
The executive power shall be vested in a president. Article 2
Article 2 means that executive powers are inherent, do not need to be enumerated
Where must the president’s power come from?
Presidents power must stem from an act of Congress, or the Constitution.
If not authorized from one of these, the courts can strike down the order.
What are the four approaches to inherent presidential power?
- No inherent power (only constitutional or statutory)
- power unless Pres. usurps authority (taking over the functions of another branch)
- Power unless Congress limits the president
- power unless Pres. violates an explicit constitutional provision.
Youngstown Sheet
What is executive privilege?
The ability of the president to keep secret conversations with or memoranda to or from advisors
What are the roles of each branch in foreign-policy?
Congress has the power to declare war, raise and support armies, regulate commerce with foreign nations, regulate piracy, lay and collect duties. (Article 1 section 8)
President is commander-in-chief, has power to negotiate treaties with the Senate’s advice and consent, appoint ambassadors.
What are the three levels of Executive Authority?
Jackson Framework:
• President is at the height of his power when backed by Congress. Power includes executive and all power legislature can delegate.
• President is at the lowest when against the express or implied will of Congress. Only relies on executive power, minus any powers Congress has over the matter.
• Congressional “silence” (not spoken on the specific issue, or unclear) is in the middle. President relies on his own power, but may have concurrent authority with Congress.
Danes & Moore v. Regan
Who has the power to make laws in furtherance of carrying out treaty obligations?
Unless a treaty is “self-executing” (i.e., not requiring any further congressional action in order to become a domestic law), Congress, not he President, has the power to make domestic laws in furtherance of carrying out treaty obligations.
Congress must enact law in accordance with treaties for that to become binding law in the U.S.
(Medellin v. Texas)
What is the Suspension Clause?
Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invitation the public safety may require it. (Art. I, sect. 9, cl. 2)
• Placement in Art. I suggests that only Congress can suspend Habeas Corpus. (Ex parte Merryman, 1861)
• Suspend - temporary
What is Habeas Corpus?
gives one who is arrested or detained by government the right to have a court direct the government official holding him in custody to produce him and provide good reason for “having the body” –or else release him.
• Right to go before a judge to challenge your detention
• Only writ that is specifically mentioned in the Constitution, a fundamental right
What did the Authorization for the Use of Military Force (2001) do?
authorized the President to use all necessary and appropriate force against those nation, organizations, or persons he determines [were involved or aided in] the [Sept 11] terrorist acts.
• Authorized by Congress. Unusual that no enemy nation was identified.
Johnson v. Eisentrager
German military members captured in different locations fighting after Germany surrendered tried and convicted of war crimes.
Court determined that foreign citizens, who did not commit the acts on US soil and were not arrested on US soil, did not have the right of Habeas Corpus.
• Were at no relevant time within any territory over which the US is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the US.
Very specific ruling. Lots of policy/functional considerations regarding costs and other things.
Rasul v. Bush
distinguished Guantanamo Prisoners because they were not nationals of nations at war with the US (no “enemy nation), denied having engaged in or plotted acts of aggression, no access to any tribunal or charged or convicted of any wrongdoing, been imprisoned in territory over which the US has exclusive control.
• Guantanamo prisons have the right to habeas corpus.
• Statutory decision, court interpreted the habeas statute.