Separation of Powers/Youngstown Flashcards
“There can be no liberty where the __.” (Madison, Federalist No. 47)
legislative and executive powers are united in same person/body
Chadha said that the Framers ranked other values as __
higher than efficiency
View 1 of nature of separation
what matters are not the formalities, but rather what arrangement of substantive powers works
View 1 of nature of separation: Congressional authorization can __
sometimes trump separation
View 1 of nature of separation: ___ can accomplish as much as clear authorization
mere ambiguity
The admin state claims much of its power from the so called ___
zone of twilight
View 1 of the separation of powers is much more ___
flexible, alternative pathways to power not necessarily problematic
Chadha (White dissent). Our Federal Government was intentionally chartered with the ___ without losing sight of ___
flexibility to respond to contemporary needs, fundamental democratic principles.
Hamburger critique of View 1 of separation
deviates from structure laid out with great care in the Constitution
Mistretta Scalia supports Hamburgers view by saying “In designing that structure, the Framers themselves considered how much ___ and set forth their ___.
conmingling was acceptable, conclusions in the document
The Constitution is more than a generalized prescription that the branches should not be “commingled too much,” to be decided ___. (Mistretta, Scalia)
on a case by case basis by the courts
View 2 of separation of powers
there are particular powers allocated to each branch and that’s that (Black majority Youngstown)
View 2 says it is wrong for the branches to __
seek alternative pathways to power
View argues that Branches can ___ while sticking to the structure
exercise power over one another
Under Frankfurter and Brandeis, the purpose of the separation of powers is to __
not to promote efficiency but to preclude the exercise of arbitrary power.
Under Scalia in Morrison, the purpose of the separation of powers is __
individual freedom
How can Congress check POTUS?
Power of the purse (but rarely used w/ vigor); power to refuse to confirm nominees; power to refuse to ratify treaties; can impeach
How can Congress check the courts?
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
How can POTUS check Congress?
Veto power; power to set priorities in law enforcement & execution; foreign affairs powers
How can POTUS check courts?
Appointment of judges; choosing to settle cases before they get to courts
How can courts check POTUS/Congress
May decide that either branch has violated the Constitution
Madison view of separation of powers
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)
What is tension between Jackson tripartite analysis and Constitution tripartite division
Jackson three zones allow rearrangement of powers even without Congressional authorization (Congress authorization trumps separation of powers)
Youngstown Facts
In Korean war, Truman exec order temporarily seize steel mills to prevent strike that would have threatened national security
Youngstown problem
What if emergency and law doesn’t provide power for President to deal with it?
Black majority holding
Seizure order cannot stand, President no inherent power to exercise in public interest
Under Black, the President’s power to issue exec order must come from
either an act of Cong. or the Const.
Under Black, the Constitution does not grant President this power because (1)
President power as Commander in Chief does not extend to seizing domestic private property to ensure production
Under Black, the Constitution does not grant President this power because (2)
President role to execute laws not make them, seizure of mills was legislative
Jackson concurrence rejects the government’s argument based on __
inherent powers & necessity (which was basically premised on idea that necessity knows no law)
Jackson said that the Founders omitted emergency powers for a reason -because they would provide a ___ ”
“afford a ready pretext for usurpation.”
According to Jackson, Congress can ___ emergency powers
safely, quickly, and easily grant
Jackson cites ___ as example of dangers of giving executive extraordinary authority during crisis
Weimar Germany
What is Jackson zone 1
express/implied authorization of Congress –> POTUS power + all that Congress can delegate
If President act is unconstitutional when in Zone 1 then __
usually means that the Federal Government as an undivided whole lacks power.
According to Jackson, A seizure executed by the President pursuant to an Act of Congress would be ___
supported by the strongest of presumptions
What is the zone of twilight?
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers,
Why is zone of twilight uncertain?
President and Congress may have concurrent authority or distribution uncertain
In the zone of twilight, any actual test of power is likely to depend on the ___ rather than on ____.
imperatives of events, abstract theories of law.
In the zone of twilight, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, _____
enable, if not invite, measures on independent presidential responsibility
Why does zone of twilight matter for administrative agencies?
much of their powers is not authorized by Congress
What is Jackson category 3?
lowest ebb, exec acting incompatible with will of Congress, own powers - constitutional powers of Congress
In zone 3, Courts can sustain exclusive Presidential control in such a case only b7 ___
disabling Congress from acting
Exception to zone 3
exec acting pursuant to exclusive authorities
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 ___
the equilibrium established by our constitutional system.”
Jackson (former AG) is more ___ less ___ than Black
practical, theoretical
Jackson seems to be saying that even with the separation of powers, the acts of Congress can ___
authorize the President to do things which might be legislative
Jackson says the The Constitution leaves a lot of room for Congressional authorization to ___
transfer power
Yet, per Hamburger, Jackson’s “zone of twilight” is wrong, since really the President ___
either does or doesn’t have authorization from Congress.
Jackson might be worried that Black’s emphasis on strict lines between different powers might ___
jeopardize federal administrative agencies.
How is Jackson’s concurrence is important groundwork for the administrative state?
Chadha White concurrence cites this for flexibility of government response
Chadha White concurrence on flexibility
Our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles
___ is the central case on separation of powers
Youngstown
Jackson’s vision of Congressional authorization strains ___
separation of powers
