Separation of national powers/ Exec powers Flashcards
What does Youngstown demonstrate?
case sets out framework for understanding presidential power
3 categories for executive power
- zenith
- twilight zone
- lowest ebb
zenith
acts pursuant to an express or implied authorization, presumption of validity
twilight zone
murky area of fact and case specific situation, Congressional silence, inherent power?
lowest ebb
acts against express will of C
only permissible where C has acted unconst.
Presidential power question
- under which category does it fall
- what other issues present themselves
a. non-delegation
b. bicameralism
c. presentment
d. appointments or removals - Q concerning state power
Where are the Pres’s enumerated powers found?
Art. II
What powers does the Pres have?
To execute, administer, and enforce laws passed by C.
Commander in chief, negotiate treaties.
To ensure laws are adequately enforced
Otherwise, must justify actions through provisions in const.
What does Dames and Moore . Regan do?
Case states that 3 categories of pres power are too oversimplified. Power is on a continuum
Nondelegation doctrine
C cannot give away too much authority. Legislatuve power belongs to C
Where is the nondelegation doctrine found?
Art I, §1, cl. 1
Why would C want to delegate powers?
lack of time
lack of expertise
allow flexibility in regulation
buck-passing
What does Whitman v. American Trucking Association demonstrate?
Case says if a nondelegation problem exists, then only C can remedy through a more specific statute
intelligible principle
law must guide those charged w/ administering the law
standard for C’s delegation of power
Ct very deferential
the greater the power delegated, the more specificity required
only been overturned twice
legislative veto
C reservation of power to veto exec action
Are legislative vetoes const.?
No. Violate exec power. Congressional acts require bicameralism and presentment.
presentment clause
every bill must be presented to Pres befre becoming law
Where is the presentment clause found?
Art I §7, cl 2 & 3
Where is the bicameralism requirement found?
Art. I §7, cl 2
bicameralism
every legislative act must pass through both House and Senate
When can C act unilaterally?
impeachment
advice/ consent of pres appointments
ratifying treaties
What can C do instead of legislative veto?
reject agency decisions through new laws enact more detailed legislation conduct oversight hearings include susnset provisions threaten budget reductions political--call press conferences
What did Clinton v. NY show?
case determined line item vetoes are unconstit.
What did Spreitsma v. Mercury Marine do?
Case showed where C silent on an issue, even if they considered the issue, there is no preemption. Expresio unis does not apply
Where is the power to appoint fed officers found?
Art II, §2, cl 2
Who has the power to appoint officers?
Pres nominates, Senate gives advice and consent
Who can’t C appoint?
any person who executes federal law (inferior or superior)
What did Freytag and Buckley demonstrate?
Cases outlined who is an officer
Who is an officer?
appointee who exercises significant discretion in the enforcement of fed law
What power does an officer have?
More than advisory power or ministerial duties. More than minimis or tirivial. Not members of legislature
Line item veto
vetoing specific items within a larger statute
Why is a line item veto unconst.
Gives pres power to veto provisions after bill has become law
What can Pres do instead of line item veto?
Presidential signing statement
Presidential signing statement
Pres alerts public that he will not enforce a certain provision or that he believes it to be unconst
Superior or inferior officer?
- Subject to removal by higher exec branch?
- empowered to perform limited duties or more brad?
- Limited SMJ?
- Limited tenure?
What is a head of department?
Like a cabinet-level dept. Superior officer
What positions can C delegate for departments to appoint?
inferior officers, not superior
Examples of “departments”
Treasury. Defense, Agriculture, Commerce, Labor
Who can appoint inferior officers?
C decides who will appoint them: Pres alone, Cts of Law, or Heads of Dept
Who are heads of depts?
all heads of cabinent-level depts and agencies. Not lesser bureaus, commission, or regional offices
Who are cts of law?
At least Art I and Art III cts. Freytag leaves unclear
Where is the Appointment Clause found?
Art. II, §2, cl. 2
Is a removal limitation const.?
Does the restriction of removal interfere with the pres doing his job?
What did Morrison v. Olsen do?
Set out a somewhat ambiguous standard that if a restriction for removal is of such a nature that it impedes the Pres’s ability to perform his Const. duty
How to determine if a removal limitation impede’s Pres’s ability to perform his Const. duty
- siginificance of the office
a. scope of duties, breadth of officers jx, length of tenure - nature of the restriction
a. who removes officer, for what causes
What did Humphry’s Executory decide?
C may limit removal of officers of independent agencies but not of cabinet level officials
