Executive Power - Youngstown Test, Recognition Power, & Legislative Veto Flashcards
Unitary Executive Theory
The unitary theory asserts that the President must always have full power and accountability over the executive branch. That’s because Article 2 says “the Executive Power shall be vested in a President.” And because the Constitution states that the President must “take care” that the laws are faithfully executed. When Congress grants authority to an agency, that should be understood as vesting power in the President.
Fractured Executive Theory
The fractured executive theory asserts that Congress has authority to limit Presidential power by allocating authority to other agencies/components of the executive branch. For example: “only the AG can prosecute cases” puts ultimate authority in the AG and fractures executive authority even if the President can technically fire the AG.
Nondelegation Doctrine (Formalism)
A restriction saying Congress may not constitutionally delegate its legislative power to another branch of government. Realistically, the “intelligible principle” exception is often preferred to the nondelegation principle.
POLICY: Delegation is bad because it blurs the lines between the branches, breaks separation of powers, subverts the bicameral and presentment process between Congress and the President, and evades protections like the President’s veto.
Intelligible Principle Exception to the Nondelegation Doctrine (Functionalism)
If Congress lays down an “intelligible principle” by legislative act, it can authorize a person or body to make policy that conforms to that principle. This is how the CDC was able to establish “Mask Mandates”.
Policy: The Federal Government would be too inefficient if the lines were steadily adhered to and would cost massive economic and political waste.
Youngstown Test (Jackson’s Concurrence - Functionalism)
Was the President’s Action Constitutional?
- When the President acts under an express or implied grant of power, he can rely on both his own powers and Congress’ powers. (Think of the President as acting with almost the full force of the Federal Government - HIGHEST AUTHORITY)
- When the President acts without an express grant or denial of Congress’ powers, he acts under the aggregate of his own independent powers, both express and implied. Courts agree Pres. has inherent authority in the context of foreign affairs and emergencies. (Think of the President as acting as the head of the executive and the powers inherent - military, DOJ, DHHS, etc. - MOST AMBIGUOUS)
- When the President acts in a way that is incompatible with the express or implied will of Congress, he may rely only on the powers expressly granted to him by the Constitution minus any Congressional power. (The President power here is extremely limited mostly to being able to control the military and even that is within the fields Congress designates - LOWEST AUTHORITY)
Youngstown v. Sawyer (Majority - Formalism; Jackson - Functionalism)
The Majority and Concurrence found that the President under the “Take Care” necessarily meant that he was not a legislator therefore he had to rely on Congress to pass bills to raise funds for the Korean War. Moreover, even Congress would be prevented from seizing the Steel Mills under “Due Process.”
Summary:
Truman was trying to forcibly take over steel mills during the Korean War.
ISSUE: May the President issue an order to take over the steel mills?
HOLDING: No, the President’s power to issue executive orders must come from either his powers under the Constitution or an act of Congress
Recognition Power
The President under Article II, Section III is given the power to receive ambassadors. Implicit in that grant of power is the Recognition Power. Recognition is a formal acknowledgement that a particular entity as a State.
POLITICAL QUESTION CONNECTION: The Supreme Court took a Functionalist approach to the Political Question doctrine and determined to hear the case on its merits.
Zivotofsky v. Kerry [Recognition Power]
Plaintiff Sued the Secretary of State to have Israel listed as his birthplace instead of Jerusalem under a Congressional Statutory Scheme. The Supreme Court held that the “Recognition Power” is an exclusive power because foreign relations must be consistent, and was delegated to the President in the Constitution.
Congress is not able to impede on exclusive Presidential authority.
Legislative Veto in a Statutory Scheme (Formalism)
In INS v. Chadha the U.S. Supreme Court ruled that a legislative veto within a Statutory Scheme is unconstitutional. This was couched in the finality of a Statute’s passage upon which the role of the Legislator has ended and was solely within the Executive to “Take Care” to enforce the Statute, therefore by acting Congress must restart the legislative process.
While this formally weakens Congressional power, the Supreme Court in Dicta stated that Congress still maintains budgetary control and can therefore still have its wishes honored.
Bicameralism
The framework of the Constitution was to separate the legislative powers in two houses: The House and Senate. The Founders feared that a one-body legislature would not be able to sufficiently represent all the interests in the nation and could lead to the tyranny of the majority. As such almost every bill must be passed by both houses to become an enrolled bill. This applies to all actions of the legislature that LOOK LIKE a bill or affect legal rights such as the House veto in Chadha.
(we didn’t learn this term) Enrolled Bill - is a bill that has passed both chambers of Congress but has not yet been presented to the President.
Presentment
Similar to Bicameralism, Congress must “Present” an enrolled bill to the President for his signature or veto per the Constitution’s Presentment Clause. Any legislative act which skips this step is invalid.
INS v. Chadha (Legislative Veto)
Chadha overstayed student visa. AG recommended suspending the deportation, but the House vetoed the AG. This veto wasn’t submitted to the Senate (bicameral passage) or presented to the Pres.
SCOTUS held the 1-house legislative veto was unconstitutional because the House was altering the legal rights, duties, and regulations of persons outside of the legislative branch. Broke Art I requirements of bicameralism & presentment.
The Nature of a Governmental Action
Executive, legislative, or judicial?
Even if an action is technically made by 1 branch, it can have characteristics of another branch. The majority characterizes the legislative veto as a legislative act by nature because it supplants what would otherwise be legislation despite being called a “veto” (which ordinarily doesn’t sound legislative).
Alternatively: Powell’s opinion characterized it as judicial because they were deciding the rights of Chadha as an individual, which is an adjudicatory action arguably.
This implicates separation of powers.
