Foreign Affairs/ War

Question 1

Foreign Affairs/ War

Answer 1

1) Exec gets broader inherent power with respect to foreign policy than domestic policy.
a) broad Federal foreign policy power emanates from very existence of a nation does Congress or Pres execute that power–>great deference to Pres (more efficient/quick/unitary responses)

Question 2

b) Curtiss-Wright:

Answer 2

non-delegation doctrine (idea that legis can’t delegate lawmaking power) does not bar Congress from delegating great authority/discretion to Pres in conduct of foreign affairs

i) F: Congress delegated Pres power to prohibit arms sale to countries; Corp. indicted for violating–>con’l
ii) BUT, courts still maintain broad power to decide con’lity of foreign actions (see “War on Terror”)

Question 3

2) War Power:

Answer 3

Art. I grants Congress power to declare war. Art. II gives Pres power (CnC) to direct military

Question 4

War Power views

Answer 4

i) Extreme view: Congress must declare war for Pres to take any action
ii) More moderate: Congress must authorize Pres action/s

iii) More liberal: WPR; Pres has broad CnC power over military use; can act w/o Congressional authorization
a. Counter: Pres can make tactical decision once Congress has given authorization of military action in certain place, but Pres can’t determine whether that action happens

Question 5

War Powers Resolution:

Answer 5

(a) Pres as CnC can introduce forces into (imminent) hostilities only pursuant to:
1) declaration of war by Congress;
2) specific statutory authorization; or
3) national emergency created by attack upon US or against forces

(b) notify Congress within 48 hours of committing armed forces
(c) POTUS can keep troops deployed for 60 days w/out authorization; 30 day withdrawal period for a total of 90 days

Question 6

Courts/WPR

Answer 6

b) Court hesitant to delineate separation of war powers (and con’lity of WPR)–>nonjusticiable political question

Views:

(a) implication of political q doctrine–>courts can’t decide what ‘war’ is
(b) courts can determine what constitutes war and if w/in Pres’s power to take actions accordingly

Question 7

i) Mora v McNamara:

Answer 7

can pres send someone to Viet. w/o declaration of war?–>denied cert

Question 8

ii) Campbell v Clinton:

Answer 8

Congressmen said Pres violated WPR and War Powers Clause of Con. for Kosovo actions–>dismissed for lack of standing (he doesn’t lose anything–> counter: votes/represents people who do)

Question 9

i) Hamdi:

Answer 9

US citizen residing in Afghan. Held by military as “enemy combatant;” gov argued no due process necessary–>limited due process required; Enemy combatants afforded less procedure than criminals

Question 10

ii) Boumediene:

Answer 10

Congress passed Act stripping habeas corpus jur’n–>since Gitmo controlled by US, process asserted by gov to detainees doesn’t pass procedural due process hurdles

Question 11

US Activities in Libya

Answer 11

Argument: When it comes to foreign affairs, 1st order substantive pp outcomes > con’lity (2nd order value)

i) Obama sent Congress report after not taking forces out w/o authorization and claimed that ops were outside scope of WPR since he didn’t send troops “into hostitlities” (drones, humanitarian purposes)Op was successful–>pp implications outweighed concerns of illegality/uncon’lity