Separation of Powers/Youngstown

Question 1

“There can be no liberty where the __.” (Madison, Federalist No. 47)

Answer 1

legislative and executive powers are united in same person/body

Question 2

Chadha said that the Framers ranked other values as __

Answer 2

higher than efficiency

Question 3

View 1 of nature of separation

Answer 3

what matters are not the formalities, but rather what arrangement of substantive powers works

Question 4

View 1 of nature of separation: Congressional authorization can __

Answer 4

sometimes trump separation

Question 5

View 1 of nature of separation: ___ can accomplish as much as clear authorization

Answer 5

mere ambiguity

Question 6

The admin state claims much of its power from the so called ___

Answer 6

zone of twilight

Question 7

View 1 of the separation of powers is much more ___

Answer 7

flexible, alternative pathways to power not necessarily problematic

Question 8

Chadha (White dissent). Our Federal Government was intentionally chartered with the ___ without losing sight of ___

Answer 8

flexibility to respond to contemporary needs, fundamental democratic principles.

Question 9

Hamburger critique of View 1 of separation

Answer 9

deviates from structure laid out with great care in the Constitution

Question 10

Mistretta Scalia supports Hamburgers view by saying “In designing that structure, the Framers themselves considered how much ___ and set forth their ___.

Answer 10

conmingling was acceptable, conclusions in the document

Question 11

The Constitution is more than a generalized prescription that the branches should not be “commingled too much,” to be decided ___. (Mistretta, Scalia)

Answer 11

on a case by case basis by the courts

Question 12

View 2 of separation of powers

Answer 12

there are particular powers allocated to each branch and that’s that (Black majority Youngstown)

Question 13

View 2 says it is wrong for the branches to __

Answer 13

seek alternative pathways to power

Question 14

View argues that Branches can ___ while sticking to the structure

Answer 14

exercise power over one another

Question 15

Under Frankfurter and Brandeis, the purpose of the separation of powers is to __

Answer 15

not to promote efficiency but to preclude the exercise of arbitrary power.

Question 16

Under Scalia in Morrison, the purpose of the separation of powers is __

Answer 16

individual freedom

Question 17

How can Congress check POTUS?

Answer 17

Power of the purse (but rarely used w/ vigor); power to refuse to confirm nominees; power to refuse to ratify treaties; can impeach

Question 18

How can Congress check the courts?

Answer 18

Can alter its size or jurisdiction; can constrain its funding; can overturn the Supreme Court’s Construction of the Constitution by amendment (XI, XIV, XVI, XXVI); can impeach

Question 19

How can POTUS check Congress?

Answer 19

Veto power; power to set priorities in law enforcement & execution; foreign affairs powers

Question 20

How can POTUS check courts?

Answer 20

Appointment of judges; choosing to settle cases before they get to courts

Question 21

How can courts check POTUS/Congress

Answer 21

May decide that either branch has violated the Constitution

Question 22

Madison view of separation of powers

Answer 22

to endure over time system had to protect itself by giving constitutitional means and motives to resist encroachment of the others (ambition must be made to counteract ambition)

Question 23

What is tension between Jackson tripartite analysis and Constitution tripartite division

Answer 23

Jackson three zones allow rearrangement of powers even without Congressional authorization (Congress authorization trumps separation of powers)

Question 24

Youngstown Facts

Answer 24

In Korean war, Truman exec order temporarily seize steel mills to prevent strike that would have threatened national security

Question 25

Youngstown problem

Answer 25

What if emergency and law doesn’t provide power for President to deal with it?

Question 26

Black majority holding

Answer 26

Seizure order cannot stand, President no inherent power to exercise in public interest

Question 27

Under Black, the President’s power to issue exec order must come from

Answer 27

either an act of Cong. or the Const.

Question 28

Under Black, the Constitution does not grant President this power because (1)

Answer 28

President power as Commander in Chief does not extend to seizing domestic private property to ensure production

Question 29

Under Black, the Constitution does not grant President this power because (2)

Answer 29

President role to execute laws not make them, seizure of mills was legislative

Question 30

Jackson concurrence rejects the government’s argument based on __

Answer 30

inherent powers & necessity (which was basically premised on idea that necessity knows no law)

Question 31

Jackson said that the Founders omitted emergency powers for a reason -because they would provide a ___ ”

Answer 31

“afford a ready pretext for usurpation.”

Question 32

According to Jackson, Congress can ___ emergency powers

Answer 32

safely, quickly, and easily grant

Question 33

Jackson cites ___ as example of dangers of giving executive extraordinary authority during crisis

Answer 33

Weimar Germany

Question 34

What is Jackson zone 1

Answer 34

express/implied authorization of Congress –> POTUS power + all that Congress can delegate

Question 35

If President act is unconstitutional when in Zone 1 then __

Answer 35

usually means that the Federal Government as an undivided whole lacks power.

Question 36

According to Jackson, A seizure executed by the President pursuant to an Act of Congress would be ___

Answer 36

supported by the strongest of presumptions

Question 37

What is the zone of twilight?

Answer 37

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers,

Question 38

Why is zone of twilight uncertain?

Answer 38

President and Congress may have concurrent authority or distribution uncertain

Question 39

In the zone of twilight, any actual test of power is likely to depend on the ___ rather than on ____.

Answer 39

imperatives of events, abstract theories of law.

Question 40

In the zone of twilight, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, _____

Answer 40

enable, if not invite, measures on independent presidential responsibility

Question 41

Why does zone of twilight matter for administrative agencies?

Answer 41

much of their powers is not authorized by Congress

Question 42

What is Jackson category 3?

Answer 42

lowest ebb, exec acting incompatible with will of Congress, own powers - constitutional powers of Congress

Question 43

In zone 3, Courts can sustain exclusive Presidential control in such a case only b7 ___

Answer 43

disabling Congress from acting

Question 44

Exception to zone 3

Answer 44

exec acting pursuant to exclusive authorities

Question 45

In Zone 3, Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is ___

Answer 45

the equilibrium established by our constitutional system.”

Question 46

Jackson (former AG) is more ___ less ___ than Black

Answer 46

practical, theoretical

Question 47

Jackson seems to be saying that even with the separation of powers, the acts of Congress can ___

Answer 47

authorize the President to do things which might be legislative

Question 48

Jackson says the The Constitution leaves a lot of room for Congressional authorization to ___

Answer 48

transfer power

Question 49

Yet, per Hamburger, Jackson’s “zone of twilight” is wrong, since really the President ___

Answer 49

either does or doesn’t have authorization from Congress.

Question 50

Jackson might be worried that Black’s emphasis on strict lines between different powers might ___

Answer 50

jeopardize federal administrative agencies.

Question 51

How is Jackson’s concurrence is important groundwork for the administrative state?

Answer 51

Chadha White concurrence cites this for flexibility of government response

Question 52

Chadha White concurrence on flexibility

Answer 52

Our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles

Question 53

___ is the central case on separation of powers

Answer 53

Youngstown

Question 54

Jackson’s vision of Congressional authorization strains ___

Answer 54

separation of powers