Separation of Powers

Question 1

The framers intent

Answer 1

cannot trust anyone with too much power

Question 2

what is the greatest tool we have to check power?

Answer 2

impeachment!

Question 3

United States v. Nixon (1974)

Answer 3

Facts- U.S. district court subpoenaed Nixon for some tapes relating to specific meetings in which Nixon was a participant. Nixon filed a claim or privileges and did not want to turn the tapes over.

Question 4

U.S. v. Nixon- Rule

Answer 4

A presidential claim of privilege asserting only a generalized interest in confidentiality is not sufficient to overcome the judicial interest in producing all relevant evidence in a criminal case.

we need official acts, this was not an official act, this was him trying to hide his dirty laundry.

Question 5

U.S. v, Nixon rational

Answer 5

the justices are supposed to enforce justice in criminal prosecutions and an impediment of an absolute, unqualified privilege would get in way of this duty.

think about what the courts today can say this- we reverse and remand for some clarity before we bring it back to SCOTUS. the justices want to be careful with precedent, this means not turning their backs to this important rationale.

Question 6

Clinton v. Jones

Answer 6

Presidential immunity in the civil context

facts: when Clinton was governor, he sexually harassed someone and she came forward while he was president, he claimed privilege from the civil suit and the court was like hell nah

Question 7

Clinton v. Jones- rule

Answer 7

The Constitution does not grant the president immunity from civil cases involving conduct committed before entering office.

Question 8

WHO WAS ON BOARD FOR CLINTON V. JONES???

Answer 8

THOMAS!!!

Question 9

Fitzgerald-

Answer 9

like Clinton v jones but asks what happens when the civil liability happened while the president was in office.

• PRESIDENTS CANT BE CIVIL LIABLE FOR THEIR ACTIONS AS PRESIDENT.
• TRUMPS LAWYERS RIGHT NOW ARE TRYING TO MILK THIS.

Question 10

SOP and the Commerce Clause

Answer 10

this is all about what happens when congress tries to pass commerce acts but it starts getting in the way an they overstep from their branch.

Question 11

What are the presidents powers when it comes to deportation- and how does this get into the chadha case

Answer 11

The governing ale of the land is that congress gets to pass immigration laws, but it is up to the president to have that final say with whether they get deported.

Question 12

Chadha

Answer 12

Here, congress used a legislative veto to allow congress to overrule an agency action with a single vote. Am immigration judge had ordered that Chadha not be deported and congress was like nope and exercised the veto on him and got him deported.

Question 13

Chadha- rule

Answer 13

we need things to go to more than one house!!!

This legislative veto is unconstitutional because it only went through a committee in the house and was not bicameral,

Question 14

chadha- term: bicameralism

Answer 14

the framers required bicameralism in the enactment of any law (we need majority support from two branches)

Question 15

Chadha- term: presentment clause

Answer 15

this requires all legislation to be presented to the president for approval before it becomes the law.

Question 16

White’s dissent in Chadha (hot baseball player)

Answer 16

Why have bicameralism when we can be more functional?

Question 17

BIG IDEA WITH CHADHA

Answer 17

CONGRESS CANNOT GIVE ITSELF UNCONSTITUTIONAL POWER, THIS IS A VIOLATION OF THE SOP

-

Question 18

Rex Lee’s comment in the Chadha oral argument about bicameralism and sop

Answer 18

it is the power of congress to make laws, not execute them. executing them is the. job of the president. everyone had a job to do and we need rot stick to that- Rex Lee counselor in Chadha oral argument

Question 19

Appointments-

Answer 19

this is a big part of SOP since we need to make sure that people are being appointed appropriately and in accordance with the Constitution.

Question 20

Morrison v. Olson

Answer 20

An officer was hired by the judiciary to conduct some investigations. the question here was whether that officer was inferior or superior, because the president is only allowed to appoint inferior officers.

Question 21

Morrison- rule

Answer 21

A law vesting the judiciary with the power to appoint an inferior officer (an independent counsel) and prohibiting the

Question 22

factors of an inferior officer

Answer 22

1. Limited jurisdiction
2. Limited Tenure
3. Limited duties (not exec duties)
4. SUBJECT TO REMOVAL.

Question 23

Morrison- iconic dissent by Scalia

Answer 23

A wolf comes as a wolf- the court isn’t even trying to hide what they are doing here.

Question 24

NLRB v. Canning

Answer 24

Obama made 3 recess appointments within a 3 day senate break. these appts were challenged

Question 25

Canning- rule

Answer 25

The president may invoke the recess appointments clause to fill a vacancy that exists during any sufficiently long senate recess.

cannot be made during a recess of less than 10 days.

Question 26

recess appointments clause-

Answer 26

his allows someone to be appointed during a senate recess if it is an emergency or longer than 10 days.

Question 27

The majority asks 3 questions here-

Answer 27

1. scope of the word racess - it means both intra and intersession
2. concerns about the time of the recess- during or before? the court says both!
3. Calculation of the length of the recess- 3 days is too short. can’t be less than 10 days

Question 28

Majority in Canning

Answer 28

Roberts, Scalia, Thomas, RNG, Breyer, Alito, Sotomayor, Kagan.

the whole gang!

Question 29

Concurrence in canning

Answer 29

Scalia joined by Roberts, Thomas, Alito

he agrees that the appointment were wrong but does not agree with the recess appointments at all and says that these recess appointments can be used as weapons by the president.

Question 30

ICONIC KAGAN ORAL ARGUMENT QUOTE

Answer 30

“IT IS NOT THE TIME OF THE HORSE AND BUGGY” IF THERE IS A 3 DAY RECESS THEN THERE IS TECHNOLOGICAL COMMUNICATION

Question 30

Article by Denniston- Pragmatism v. ,Formalism

Answer 30

Pragmatism- Breyer- letting the Constitution breathe

formalism- Scalia- reading it for what it is

Question 31

The power to remove - Background

Answer 31

we begin with Meyers, were there was a law that said that postmasters could only be fired by the president with the consent of the senate, the court deemed this law unconstitutiona l as it would put too much burden on the senate and be too restrictive on the president

Question 32

power to remove- we then have Humphries executor

Answer 32

this ruled that the president’s power to remove an executive branch official does not apply to officials with legislative or judicial functions

Question 33

WHO WANTS HUMPHRIES OVERRULED??

Answer 33

THOMAS AND GORSUCH!! BECAUSE IT TAKES AWAY EXECUTIVE POWER

Question 34

Seila Law v. Consumer Financial

Answer 34

We have the CFPB which is an agency to help the economy, and this is run by a single director who is not removable by the president at will and had to serve a 5 year term. . Seila law sues saying that it is unconstitutional.

Question 35

Sela Law rule

Answer 35

It is a violation of the SOP doctrine for an administrative agency to be headed by a single director not removable by the president at will, this limits the presidents power.

Question 36

Seila Law- Rationale

Answer 36

Majority by Roberts

he says that this (1) is NOTHING like Morrison because that was an inferior officer and (2) this officer is dealing with economics and finances which directly affects citizens, thus it needs to be of removal by the president.

Question 37

DISSENT in Seila

Answer 37

Sotomayor, kagan, breyer, and RBG
- THIS IS NOT A QUESTION FOR THE COURTS.

Question 38

what seila did

Answer 38

it got rid of the 5 year terms and now the president can fire the director of this as he pleases