Executive Orders, Agreements, and Treaties Flashcards
Steel Seizure Case - Youngstown Sheet & Tube Co. v. Sawyer (1952) J. Black
During Korean War, steel workers threatened strike. President Truman issued Executive Order to have gov’t take over possession & operation of steel companies. Congress didn’t act in response.
Holding: Approach #1: Formal approach, no inherent presidential powers, power stems from Constitution/act of Congress – President doesn’t have that here, unconstitutional
President tried to argue it was necessary to protect war efforts – Commander in Chief
President can’t just enact laws where directing policy to be executed in manner prescribed by him
Different than him directing congressional policy to be executed in manner prescribed by president
J. Douglas concurs: Approach #2, president can act w/o express authority as long as he doesn’t usurp another branch of gov’t. President did that here – forcing expenditure of federal funds to compensate steel mill owners, usurps Congress’s spending power.
J. Frankfurter concurs: Approach #3, flexible/functional approach. Don’t need to define presidential powers, b/c of checks & balances, but no power here b/c Congress explicitly rejected giving president this authority.
“It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”
J. Jackson concurs: Approach #3, functional approach, this is unconstitutional b/c Congress denied president this authority. Sets out 3-part framework. **most cited portion decision
Max presidential power: in pursuant of express or implied authorization – Art 2 powers + all powers Congress delegates
“Zone of twilight”: acts w/in his own inherent powers – but may have concurrent authority w/ Congress, distribution is uncertain
Lowest ebb: w/o express or implied will of Congress – in contravention of congressional action
Jackson puts this case in #3 category
J. Vinson dissent: Approach #4, executive is only accountable to the people – this is necessary act. Congress did not act in response to disapprove.
4 approaches to interpret presidential authority Steel Seizure Case (All validish)
- No inherent presidential power: must act w/ express constitutional or statutory authority [max] 2. Inherent to a point: President has inherent authority unless he interferes w/ functioning of another branch of gov’t or infringes on their powers → or implied by Congressional silence 3. Legislative Accountability: President may exercise powers not mentioned in Constitution as long as he doesn’t violate a statute or the Constitution [min] 4. [Vinson dissent] Broad inherent authority: President has inherent powers, can’t be restricted by Congress, unless he violates Constitution
Steel Seizure Case (J. Jackson concurs) 3 zones
Max presidential power: in pursuant of express or implied authorization – Art 2 powers + all powers Congress delegates “Zone of twilight”: acts w/in his own inherent powers – but may have concurrent authority w/ Congress, distribution is uncertain Lowest ebb: w/o express or implied will of Congress – in contravention of congressional action
Treaty Definition
agreement between U.S. and foreign country, negotiated by president and ratified by Senate
Article for Treaties
Art. 6: Treaties are supreme law of land
Executive Agreement Defintion
agreement between U.S. & foreign country that is effective when signed by president & head of other country – no other approval needed Anything that can be done by treaty can be done by EA SCt has never declared EA unconstitutional, and has sided w/ president each time an EA has been challenged
Article for Executive Agreements
Art 2 §2: gives president EA authority
Dames & Moore v. Regan (1981) J. Rehnquist
President Carter initiated EO in response to Iran hostage crisis. (Regan took over after taking office) Carter froze Iranian assets. EO provided that U.S. lift freeze in exchange for Iran releasing hostages. It also suspended claims for any pending lawsuits w/ Iranians. Dames & Moore challenged it, had lawsuit pending. Holding: This is w/in presidential power b/c was taken pursuant to specific congressional authorization. And Congress implicitly accepted it by not reacting. President has power to settle w/ foreign nations. Court saw this as category #1. Implications: case can be read narrowly, as only allowing EA’s when authorized by federal statutes OR can be read broadly, b/c SCt has never invalided EA for undermining Senate’s role in ratifying treaties
Zivotofksy v. Kerry (2015) J. Kennedy
Z wants Israel on his passport, as per new law. Secretary of State refuses b/c policy not to take a stance. Holding: Recognition is Presidential power, not Congress’s, President infringing on Congress’s power Need for nation to speak w/ 1 voice – the president’s Executive branch has power to oversee foreign policy – including recognition While Congress can regulate in some ways, can’t command President to change Under Youngstown: either category 2 or 3, President has inherent authority – is he violating constitution? Or interfering with other branch? J. Thomas concurs: vesting clause is broad and doesn’t suggest that presidential powers are confined to those enumerated in constitution J. Roberts dissent: This isn’t consistent w/ SOP, presidential power is not exclusive, statute here doesn’t implicate recognition
