Executive Power

Question 1

Formalist v. Functional approach to separation of powers

Answer 1

Formalist – Means that a branch of gov’t should stay within their box at ALL costs.

Functional – Less rigid about checks and balances. This is the approach all justices in Youngstown, except J Black adopted.

Question 2

Two step test for assessing constitutionality of presidential acts

Answer 2

1. Is the executive action within the scope of the President’s power under the Constitution?
2. Does the law violate some other constitutional provision or doctrine?

Question 3

Youngstown Sheet & Tube Co. v. Sawyer, (1952)

Answer 3

President Truman’s takeover of a steel mill, which was motivated because the country was at war and the mill stopped producing steel due to a strike.

Court held this takeover was unconstitutional.

Concurrence, Justice Jackson Yielded a Three-Zone Test which is the underlying rule today.

Question 4

Three-Zone Test from Youngstown

Answer 4

Outlines three zones which highlight whether president’s action was valid.

1. Acting pursuant to Congress’s or Constitutional authorization – President’s authority at max.
   If congress or the constitution approves the constitution. President’s authority is at its highest.
   GREEN LIGHT.
2. Acting in absence of a congressional / constitutional grant or denial of authority THEN President’s authority is UNCERTAIN.
   YELLOW LIGHT.
3. President takes measure incompatible with congress – lowest ebb of authority.
   RED LIGHT.
   e.g., Trump used money for a purpose other than what congress intended.

Question 4

U.S. v. Nixon, (1974)

Answer 4

President Nixon attempted to quash tape recordings of his conversations as evidence, based on “executive privilege.”

The court held that the president does not have the right to determine whether an exertion of executive privilege is constitutional.

Takeaway: President’s power of executive privilege is NOT absolute.

Question 5

U.S. v. Curtiss-Wright Export Corp., U.S. (1936)

Answer 5

President’s power wrt to foreign affairs is more unchecked, but its still not absolute.

Question 6

Dames & Moore v. Regan, Secretary of the Treasurey, U.S. (1981)

Answer 6

Pres. has power to enter into executive agreement w/o advice and consent of senate.

Further, president can resolve foreign affair disputes, if congress acquiesced to the president’s approval. (implied approval.)

Question 7

War Powers Resolution of 1973

Answer 7

The U.S. cannot go to war without the congress first having declared war.

Exceptions.

President may only use armed forces when:

1. Congress issues an authorization / declaration of war;
2. Specific statutory authorization;
3. Nat’l emergency created by an attack on the U.S.

Question 8

Richard Nixon v. A. Ernest Fitzgerald, U.S. (1982)

Answer 8

Main ways of checking the president.

1. Civil suits and criminal proceedings;
2. Impeachment

The president has ABSOLUTE immunity from civil lawsuits for all official actions taken while IN office.

Rational is dont want to impact the president from being able to effectively perform his job.

Question 9

Bill Clinton v. Paula Corbin Jones, U.S. (1997)

Answer 9

Clinton was accused of sexual harassment which allegedly occurred before he took office.

President is NOT immune to events occurring before presidency.