Executive Power Flashcards
Youngstown RULE
under the Sep of Power Doctrine –> Prez may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution.
Youngstown elaboration
Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress
AND the prez has certain implied powers not expressly listed on the Con
Youngstown Test
Lowest Ebb/Weakest authority
Prez acts contrary to express or implied will of congress & the Con is silent –> prez authority is at its lowest
However, Prez’s action upheld only if Congress’ act is unconstitutional
Youngstown Test
Zone of Twilight/Concurrent authority
Prez acts in absence of congressional grant/denial –> thus relys on independent power.
Thus, the constitutionality of prez independent power depends on the imperative of events
Youngstown Test
Strongest authority
Prez acts pursuant to implied or express congressional authorization.
thus action is presumed valid.
when applying Youngstown test to facts…
say…“congress will assert that…”
then say…“prez will assert that…”
Non-delegation Doctrine RULE
prohibits Congress from delegating its constitutional powers to another branch of government.
Non-delegation Doc EXCEPTION
if Congress has provided sufficiently intelligible principles to guide their exercise –> the
delegation will be permitted
Non-Delegation Doc on Prez’s Foreign powers
does not bar Congress from delegating great authority and discretion to the President in foreign affairs.
CL United States v. Curtiss-Wright Export Corp RULE
Foreign Affairs
The federal government inherently has broad implied powers in foreign affairs, and the executive is the primary repository of such powers.
Foreign Affairs
Recognition
formal acknowledgment of an effective government for a territory.
● The President has the power to recognize a sovereign nation through the Reception Clause under Article 2 (the
president shall receive ambassadors and dignitaries) .
Prez Foreign Policy Power
Commander in Chief RULE
○ Although the Pres is commander in chief of the military (Article II Clause 1), only Congress may declare war = war power (Article I Section 8)
■ Congress can make rules for military, fund any wars,
○ Pres may take military action w/o a declaration of war in the case of actual hostilities first happen against US before Prez retaliates
What test is applied to the Prez Foreign Policy Power?
○ Applies Justice Jackson Test to find authorization for war carries with it implied authorization to do anything authorized by the law of war.
War Power Resolution RULE
a federal law that requires the President to communicate to Congress the committal of troops within 48 hours and to remove all troops after 60 days if Congress has not granted an extension
Prez Foreign Policy Power
Treaty
○ Pres has the exclusive power to negotiate (enter into) treaties (agreement) with foreign countries requiring senate approval (2/3) vote to enter treaties but not to void them
■ Conflict b/w a treaty and federal statute:
○ The one adopted last in time controls
○ OR since treaty is fed law which is supreme over state law–>treaty supersedes state law
