Executive Powers

Question 1

Facts of Nixon v. Fitzgerald?

Answer 1

Fitzgerald was a whistle blower in the Air Force, he testified to Congress about cost overruns of the department of defense and was subsequently fired by Nixon

Question 2

What was the issue in Nixon v. Fitzgerald?

Answer 2

Wrongful termination from duty to provide information to Congress

Question 3

What was the holding in Nixon v. Fitzgerald?

Answer 3

POTUS is absolutely immune from suits for civil monetary damages regarding acts of power within the outer perimeter of his official responsibilities because:

1. the POTUS position is so unique with focus of attention (anti-diversion argument)
2. POTUS is someone that a lot of people may want to file suit against civilly because his decisions affect so many people - would be an easy target
3. Could distract POTUS from his public duties - want the president to be thinking about the nations interest and not just their own litigation

Even though POTUS is not legally accountable, he can be politically accountable

Question 4

What did fitzgerald seek in his suit against president Nixon?

Answer 4

civil monetary damages

Question 5

Facts of U.S. v. Nixon?

Answer 5

Criminal proceeding against Nixon’s advisers after Watergate and the independent counsel sought to get tapes from Nixon’s office

Question 6

What was Nixon’s argument (the issue) in U.S. v. Nixon?

Answer 6

Nixon argued that he had executive privilege and did not have to turn over the tapes the independent counsel was trying to get

He also argued that the court had absolutely no right to compel him to turn them over

Question 7

What was the holding in U.S. v. Nixon?

Answer 7

SCOTUS unanimously rejected the President’s claim of executive immunity because the Marbury power gave the Court, not the President, to say what the law is.

Although there is executive privilege in regard to the president’s privacy in communication (because privacy is necessary for the POTUS), the right is not absolute. It needs to be balanced against other values - this was not a claim of national security or diplomatic secrets.

The criminal justice system outweighs the importance of concealing these tapes.

Question 8

What was the constitutional issue in Nixon v. Fitzgerald?

Answer 8

Fitzgerald was wronged but seemingly had no remedy (because the president is immune from civil damages), a Marbury violation

Question 9

What article of the Constitution confers the executive power?

Answer 9

Article II

Question 10

What executive power does Youngstown fall under?

Answer 10

the inherent executive powers

Question 11

What was the rule of law that came from Youngstown?

Answer 11

The President of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution

Question 12

What was the method of reasoning in Youngstown?

Answer 12

Formalistic

Question 13

What was the approach (test) called that came from Youngstown via Justice Jackson?

Answer 13

The categorical approach

Question 14

What was the 1st step in Justice Jackson’s categorical approach that came from Youngstown?

Answer 14

Category 1:

• POTUS + Congress acting together
• When POTUS acts pursuant to an authorization by Congress
• The presumption is at its strongest legal basis that the POTUS acted rightfully under his constitutional powers but the question is whether Congress acted constitutionally.

Question 15

What was the 2nd step in Justice Jackson’s categorical approach that came from Youngstown?

Answer 15

Category 2:

• POTUS acting on own and congress is silent
• When the President acts in the absence of Congress’s opinion
• Question if the POTUS power to act even exists here
• This usually pushes to category 1 or 3
• the presumption is less strong, but the President and Congress have concurrent authority.
• Situation where Congress has been silent and the president can act based on their constitutional powers but depends on the claim of how the constitution gives the power

Question 16

What was the 3rd step in Justice Jackson’s categorical approach that came from Youngstown?

Answer 16

Category 3:

• POTUS v. Congress
• When the President acts against Congress, he has his weakest legal basis. Look to see if the President’s powers are stronger than Congress
• President acting on his constitutional powers alone – Commander and Chief Clause (military) or possibly the Take Care Clause

Question 17

What category does Youngstown start in and where did it end up moving to?

Answer 17

Started in Category 2 and moved to Category 3

Question 18

What executive power does Chadha fall under?

Answer 18

The executive legislative powers

Question 19

What was the method of reasoning in Chadha?

Answer 19

formalistic and textual - presentment and bicameralism

Question 20

What is the rule of law that came from Chadha?

Answer 20

Legislation providing Congress with a one-house veto over an action of the executive branch does not meet (or violates) the constitutional requirements of presentment and bicameralism.

Question 21

What does the appointments clause of principal officers of the executive powers state?

Answer 21

“He shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public minsters and consuls, judges of the Supreme Court, and all other officers of the US…”

Question 22

Can the president remove principal officers?

Answer 22

yes, in fact he is the only one that can and he can only do so for good cause

Question 23

Who makes appointments of inferior officers?

Answer 23

Congress may by law vest the appointment of such inferior officers, as they think proper, in the President, in the Courts of Law, or in the Heads of Departments.”

Question 24

What was the rule of law that came from Morrison v. Olson?

Answer 24

A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting removal without cause does not violate separation of powers principles.

Question 25

What does a president need to remove and officer?

Answer 25

Good cause

Question 26

What are 3 Factors to Consider when limiting approval of presidents actions would hinder the executive from “functioning”

Answer 26

1. Aggrandizement of One Branch
2. Usurpation (taking) of Powers
3. Impressibility Undermines the Powers of Another Branch

Question 27

What are the 4 things to look at when determining if someone is a principle officer?

Answer 27

1. Duties
2. Jurisdiction
3. Tenure
4. Who are they subject to removal by?

Question 28

What is the rule of law that came from Mistretta?

Answer 28

The non-delegation doctrine/intelligible principle

Congress may delegate authority to set sentencing guidelines to a judicial commission, provided that it gives an intelligible principle to guide the commission and does not aggrandize the judicial branch at the expense of another branch.

Question 29

What were the methods of reasoning from Mistretta?

Answer 29

ongoing history because SCOTUS helped make civil rules of procedure and federal rules of evidence

Question 30

Is it constitutional for judges to hold more than one position at the time?

Answer 30

yes because of the emoluments and incompatibility clause does not apply to judiciaries

Question 31

What is the emoluments and incompatibility clause do for judiciaries?

Answer 31

It makes it clear that judges are allowed to hold other offices and work other positions. If the Constitution wanted to preclude judges, it would have done so in this clause.

History has shown that judges have the right to hold other positions—like John Marshall who was the Secretary of State and the Chief Justice of SCOTUS at the same time

Question 32

Where is the emoluments and incompatibility clause in the Constitution?

Answer 32

Article 1, Section 9, clause 8

Question 33

What was the rule of law that came from Curtiss-Wright?

Answer 33

An unconstitutional delegation of legislative power to the executive may be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict.

Executive action is constitutional under foreign affairs—comes from being a sovereign nation, not the constitution. Sometimes the POTUS needs to act autonomously and quickly.

Question 34

What was the method of reasoning in Curtiss-Wright?

Answer 34

ongoing history

Question 35

What one of Justice Jackson’s categories from Youngstown would Curtiss-Wright fit into?

Answer 35

Category 1, as an act pursuant to congress’ approval

Question 36

What executive power does Curtiss-Wright, Dames & Moore, and Zivotofsky v. Kerry fall into?

Answer 36

The executive right to foreign affairs

Question 37

What is the rule of law that came from Dames & Moore?

Answer 37

POTUS has authority to settle claims through executive orders where it is necessary for the resolution of a major policy dispute between the U.S. and another country and where Congress acquiesces to the President’s action.

Question 38

Where would Dames & Moore fall in Justice Jackson’s categories from Youngstown?

Answer 38

Category 1, because congress acquiesced

Question 39

What is the rule of law that came from Zivotofsky v. Kerry?

Answer 39

Article II of the Constitution grants the U.S. president the exclusive authority to formally recognize a foreign sovereign through executive power that Congress may not contradict via statute.

the president has the sole power to grant formal recognition of Israel as a state