Seperation of Powers Flashcards
Analysis for all separation of powers questions:
- What power is being exercised?
- Chadha tells us to start with a presumption that each branch is using its own power —- but it’s a rebuttable presumption. Ultimately we care about the substance of what they are doing.
- Then look to a few other things to confirm presumption is right. (what part of C are they using? How else could this person achieve this goal?) - Is the right actor using this power?
- Is the actor following the mandatory procedures? (bicameral is & presentment for leg.)
Two views on the separation of powers
Functionalism
Views:
- The Constitution doesn’t provide a lot of detail about what the diff types of power are. And congress gets a lot of leeway under Necessary and Proper clause.
- Courts must maintain the balance of power.
Major interpretive tools: purpose & Consequences
- Emphasizes flexibility
Formalism
Views:
- Constitution establishes relatively clear rules of separation.
- Courts must enforce the text. Make sure the right branch is exercising the right power.
Major interpretive tool: text
- Emphasizes rules
Separation of powers overview
- “We the People” start with all the power
- The Vesting Clauses delegate specific power to specific actors.
- The Consitution often includes detailed procedures for exercising those powers.
Implications of this seperation structure:
- The federal government only has limited and enumerated powers.
- No sharing powers (unless proscribed that way)
- Mandatory procedures. If the Constitution says you have to use a certain procedure then that is the only way you can do it.
Article I: Delegation
Current rule
Congress may delegate its legislative powers as long as it provides an “intelligible principle” to guide the discretion of the executive branch.
Intelligible principle = delegation is permissible if Congress has made clear to the delegue “the general policy he must pursue and the boundaries of his authority.” (Very functionalist)
The intelligible principle must define
(1) the general policy to be pursued; and
(2) the boundaries of the authority
BUT if Congress is going to delegate its power, it has to delegate it all. Can’t reserve a legislative veto for itself.
^^^ Super low bar. Easy to satisfy. Court will look HARD to find an IP if it’s not obvious.
Article I: Delegation
Grundy Dissent’s test for delegation
Get rid of the intelligible principle and delegation.
Congress can’t delegate the power to make binding rules on the public (bc that’s purely legislative power)
BUT Congress can delegate under three circumstances
1. Authorize another branch to fill in details (as long as Congress is making the major decisions) (exec can’t making any rule that imposes binding limits on private citizens)
2. Executive fact-finding (as long as Congress makes the policy choice, they can delegate to the President the decision as to when that choice kicks in)
3. Nonlegislative decisions (Congress can delegate nonlegislative decisions (ex: foreign affairs)
Article I: Delegation
Arguments against delegation
Congress can’t delegate the power it has to make binding rules on the public.
[Text & Structure]
- Vesting clause says “all legislative powers”
- Bicameralisim & presentment procedures suggest there are no other procedures (negative implication cannon)
[History]
- At the founding, agents couldn’t redelegate power
[Purpose & Consequences]
- Risk of tyranny (making exec more powerful)
- Decline in accountability (if it’s someone else’s job your constituents wont get mad at you)
Article I: Delegation
Arguments for delegation
Congress can delegate the power to make binding rules so long as Congress provides guidance on how to do so.
[Text]
- Congress is literally using legislative power when it gives instructions to the executive branch
- Executive branch then is only using executive power when it follows Congress’s instructions
[Purpose & Consequences]
- Nondelegation doctrine is impossible to enforce
- Delegation increases accountability
- Delegation is necessary for modern government (some jobs are better done by experts than Congress)
Article I
What is bicameralism? Why have it be a requirement?
A law cannot be passed without the support of a majority of BOTH houses. A1S7
Purpose:
- Cumbersome by design. The legislative process is the most dangerous power. We want consensus, stability and deliberation.
- All represent different people for different amounts of time and go up for elections at different times. So it effectively creates a super majority requirement.
Article I:
What is presentment? Why have it?
Legislation must be presented to the President to sign before being enacted.
Purpose:
- Slows down the process even further (more cumbersome)
- Democratic concerns — even though Congress can get majority, don’t want the 51% to take advantage of the 49%.
- President also gets to protect itself
Article I
Strongest argument for the requirement of bicameralism & presentment
Negative Implication Cannon
These are both constitutionally proscribed (“Every bill shall . . .) A1 S7
Since this is the constitutionally prescribed procedure, no other procedure is allowed
When the text answers the question ^^ we don’t care whaat your other interpretive tools think
Article I
Attempted evasion of bicameralism & presentment — Legislative vetoes
INS v. Chadha
Allowing executive delegation (with intelligible principles) forfeit bicam and presentment for expertise and a better government.
However, self delegation (like saying this power only belongs to the house, not the senate), we would lose the benefits of bicam and presentment without gaining anything in return.
A legislative veto will further make congress MORE likely to delegate, and we are skeptical of delegation to begin with. SO it just is bad all around.
Dissent:
- Constitution is silent on leg vetoes. But Congress has NP clause.
- Congress has adopted like 200+ leg vetoes cmon mane.
Article I
Attempted evasion of bicameralism & presentment — Line-item vetoes
When the president cancels part of the law, that’s the same as amending the law, which is purely legislative. So this is unconstitutional.
Negative implication (we have bicam and presentment which mean it’s the only way)
History: George Washington didn’t think he could do this either.
Article I
Attempted evasion of bicameralism & presentment — Broader holdings of Chadha & Clinton
- Congress can’t use legislative power without going through both bicameralisim and presentment
- Congress can’t give the President power to change the law formally
Article II
Appointments — are these procedures exclusive? Or can Congress use its NP clause to use different procedures to appoint? Arguments.
Buckley v. Valeo
These procedures are exclusive. Congress cannot come up with a work around.
Text
- it says shall, which is usually interpreted as mantadory.
- Negative implication cannon
Purpose
- The founders made a change before ratification because the framers DIDN’t want anyone else making this appointment.
Article II
Appointment — Text of A2 S2.
President shall nominate (w advice and consent of senate) and appoint . . . all other officers of the United States.
But Congress may . . . vest the appointment of such inferior officers
Article II
Appointments — how to tell if they are a principal or inferior officer?
First: Are you an officer?
An officer is someone who:
1. Occupies a “continuing position established by law” and
2. Exercises “significant authority pursuant to the laws of the US” (Buckley v. Valeo)
If they are an officer, are they a principal/regular officer or an inferior officer?
A. Do they have a supervisor?
Does their supervisor supervise all of their important work??
- Independent counsel until the Court overrules Morrison (but see Morrison dissent)
Article II
Appointments — Appointment procedure for officers of the United States
(1) president nominates; (2) Senate confirms; (3) President appoints
Article II
Appointments — Appointment procedure for inferior officers of the United States
Default: use the appointment procedure outlined for officers of US
UNLESS congress says a different one applies
Good Exam Q: Elon Hypo
Can Trump appoint Elon to slash government spending?
- Not clear President has the power to create any position at all. (Youngstown = creating a position is a legislative power)
- Spending power is a legislative power
- Would elon satisfy the test for an officer from Buckley v. Valeo?
Article II
Removal — Current rule
From Selia Law
President can exercise complete removal authority (Myers is the default rule). Hump and Morrison are just limited and narrow exceptions. To put a good cause removal restriction on someone, you have to use one of these two exceptions. If you cannot fit within either of the exceptions, then you have to go back to the default Myers rule (president can exercise complete authority)
Exceptions
1. Humprey’s Executor Exception
- Committees structured similarly to the FTC (multi-membered commissions non partisan)
- Morrison exception
- Congress may good cause remove inferior officers with limited tenure and powers
Article II
Removal — Arguments supporting current law (president can excerise complete removal not their own)
- Vesting Clause — has to carry out the law. Removal is an incidental power of the executive power.
- Take Care — if president can’t remove someone who is not faithfully executing the law, how are they supposed to Take Care? Also, if officials could just do a shitty job (or not do their job) when the opposing party controls that would be a really ineffective and inefficient government.
- Decision of 1789 & Early Practice — both of these concluded this answer as well. People making the decision of 1789 were literally the framers.
- Unitary executive — if we want to have a strong and energetic executive, then the executive power has to be in a single person.
Article II
Removal — arguments supporting the view that Congress gets to make this decision
- Silence — where the Constitution doesn’t expressly address it, Congress can use NP to get there.
- Myers dissent — thinks that the maj reads the dec 1789 too broadly since 1789 was talking about high political officers.
- We are trying to create powers outside the President’s control. Administrative law independent agencies can’t be independent if the president can just remove them when they don’t like their decision.
Incidental Powers test
Two things must be true for an incidental power to exist:
1. An incidental power must be related to the expressly granted power
2. An incidental power must be smaller than the expressly granted power
Residual Powers
People disagree about whether they even exist
- unenumerated powers that were held by the crown and passed down to the president if they weren’t delegated elsewhere.
- Do NOT need to be smaller than or related to an express power
- Can be used to argue only about the President’s power
Ex: neutrality procolamations. Withdrawals from treaties.
Article II
Who gets to exercise unenumerated foreign affairs powers? Hamilton’ stance
The vesting clause gives all residual FA powers to the president.
These FA powers come from a residual grant of power. These vesting clause of Art II carries all the powers the kind would have had unless expressly reassigned to another branch by the Constitution.
What about the part where Art II expressly gives powers. Isn’t that redundant?
- no, it’s just emphasizing the important stuff or narrowing the powers the King would have had.
Summary of Ham analysis:
1. Did the crown have the power?
2. Did the Constitution expressly reassign it somewhere else?
3. If not, then the President has it.
Article II
Who gets to exercise unenumerated foreign affairs powers? Madison’s stance
The vesting clause simply gives the power to carry out the already existing laws.
It presupposes the existence of the laws to be executed.
S2&3 are therefore additional grants of power beyond the “executive power” which is why they are necessary to include.
Unenumerated FA powers:
1. President only has enumerated FA powers.
Article II
Power to recognize foreign nations (majority & arguments)
Zivotofsky
Held: the President has the exclusive power to recognize foreign governments.
[text/history]
1. At the founding, there were several ways to recognize a foreign gov: (1) receiving their ambassador; (2) sending them an ambassador; (3) signing a treaty. The Constitution gave these powers to the President
[consequences]
2. The Nation must speak with a single voice on foreign affairs. This is best done by the President.
- Only the Executive has the characteristic of unity at all times. He is so better positioned to take the decisive, unequivocal action necessary to recognize other states at international law.
Article II
Power to recognize foreign nations (dissent & arguments)
We don’t have to actually decide this because the statute doesn’t require recognition.
[text/structure]
The Reception clause is framed as an obligation, not a power.
[Precedent/practice]
In the past, Congress has asserted this authority
Article II
War Powers margins. History / Text arguments
The initial draft of the Constitution said Congress has the power to “make” war, not “declare” war.
But due to concerns about Congress being too slow to respond, Madison proposes the change to “declare” in order to reserve the power of the President to respond to attacks.
Article II
War Powers margins. Practice arguments
In practice, the President has taken the initiative to act unilaterally.
Practice leans pretty firmly toward the president pretty much having the power to act unilaterally. But…
How much should we rely on historical practice?
- A lot of people think the past acts (Koera, Vietnam, Afganistan, etc.) has been unconstitutional… so do we rely on it?
- Historical practice is particularly important in this context (war powers) bc that’s all we really have to go on.
Article III
Judicial Review. Arguments against judicial review (Brutus)
SCOTUS can invalidate Congress/Pres actions. And no one can correct them if they’re wrong.
This creates judicial supremacy, which is a problem bc they aren’t politically accountable (life appointments) [structure/consequences]
Article III
Judicial Review. Arguments for judicial review (Hamilton Fed 78)
Purpose bc Federalist / Founder.
Consequences reasoning.
Judicial branch is the least dangerous (no power over sword or purse) & politically independent (in theory)
The power of the People is superior to all branches of government. When leg/exec stand in opposition to the will of the people (as declared in the Constitution) the court must intervene on their behalf.
Also, courts are supposed to interpret the laws according to C. A Constitution is a law.
Article III
Judicial Review. Arguments for judicial review (Marshall, C.J. in Marbury v. Madison)
[Structure]
Constitution is a document of enumerated powers that set fixed limits on other branches’ powers. Those limits are binding, as delegated by the People (who are supreme).
- When there is a conflict, therefore, the Constitution has to win (bc People > legislators)
[Text}
1. Arising Under
- Constitution grants courts jurisdiction for cases that arise under C. They have to interpret C to do this.
- Oaths Clause
- Judges swear to uphold the C. Why make them swear and then not do it when necessary? - Supremacy Clause
- Constitution is the supreme law. Laws are supreme law of the land only when made in pursuance of the C. (unconstitutional laws are not the laws of the land)
Article III
Departmentalism Defined
Departmentalism is the view that each of the of the three departments of government (and maybe even the states) can and should independently interpret and enforce the Constitution when carrying out their responsibilities.
- Branches have equal authority to interpret the C and aren’t bound by the interpretations of the other branches.
Most all departmentalism think that judgements are binding inside the particular case, but the reasoning isn’t binding on future actions or cases.
My thoughts:
This seems like it creates really dumb and inefficient judicial system. When actors don’t follow the judicial precedent, if they ever get challenged & taken to court, they will just get ruled against time and time again.
Article III
Arguments for Departmentalism — Lincoln (post-Dred Scott)
We shouldn’t have to follow law that isn’t “fully settled.” Law that isn’t fully settled can’t be precedent.
Would be fully settled if
1. Unanimous & without partisan bias; OR
- Dred scott was a divided court
2. if the issues has been before the court multiple times and affirmed & reaffirmed over the years.
Article III
Snyder’s best arguments for departmentalism
- We have three co-equal branches [text]
- Each branch has to interpret the Constitution to do its job. (at a minimum have to understand the scope of your Constitutional power) (I don’t see how this is persuasive)
- Each branch takes an oath to uphold the Const. Not the judicial branches interpretation of the Constitution. [text]
- If the Supreme Court is egregiously wrong, we want people to resist (see Dred Scott) [consequences] (I think this is the best point actually)
Article III
Judicial supremacy defined
The view that all gov officials must treat the Supreme Court’s opinions about the Constitution as if they were the Constitution itself.
- The Supreme Court’s interpretations of the Constitution are supreme, and the other branches must defer to them.
- Holding AND reasoning are binding on all future situations
Article III
Judicial Supremacy arguments — Cooper v. Aaron (which CJ Snyder’s thinks is problematic)
[Text]
Constitution is the supreme law of the land.
- RS: this doesn’t mean other branches can’t interpret.
[Precedent]
Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.
- RS: nooo. Marbury says that in order to do our job our duty is to figure out what the C means. But the other branches could also say this.
[Consequences]
if states could nullify federal court judgments, they could nullify the Constitution.
- RS: no this is a straw man. We aren’t talking about nullifying judgments we are talking whether the reasoning of Brown has to be followed in future cases.
Article III
Snyder, CJ’s best arguments for judicial supremacy
- The Supreme Court is best suited to interpret the Constitution (they are professional law interpreters). Other branches may know literally nothing about legal interpretation.
- If SCOTUS is right (or even wrong within normal parameters) we want people to follow its decisions. (see Cooper v. Aaron).
Article III
Judicial supremacy v. departmentalism in practice
People generally act like judicial supremacists.
- Court’s get a lot of power bc they go last
- Also, if departmental it’s got challenged they would lose in court, so why resist? (kinda my arg from earlier)
- Developed a tradition of treating SCOTUS more seriously than other branches
BUT there are prominent examples of departmentalism in extreme cases
- Dred Scott
- Alien & Sedition acts
- First National Bank
No matter which view you pick, you won’t always like the outcome at least some of the time.
- Departmentalists (people get to resist good decisions (cooper v. aaron))
- Judicial supremicists (bound by bad decisions (Dred scott))
Article III
List the limits on judicial review
- Cases & controversies
- Standing
- No political questions `
Article III
Cases & Controversies defined
A court cannot issue “advisory opinions.” There MUST be a genuine Case or Controversy
- a genuine dispute among real parties pertaining to concrete facts
Article III
Cases & Controversies arguments
[text]
1. Opinions clauses — C gives President power to call on heads of departments for opinions, but this is only for the executive department. Negative implication = can’t require the courts to issue an advisory opinion.
[Consequences/ Structure]
2. Separation of powers — concern that if the court goes first rather than at the end our separation of powers wouldnt’ work properly.
3. Judicial power — advisory opinions look a lot like a group of 9 people legislating.
[Consequences / Theory]
4. Want parties who have an interest in the case to make the best arguments in favor of their position
5. Having concrete facts can sharpen the issues.
Article III
Standing doctrine
Standing is about making sure the right type of person is bringing a lawsuit (more specific than the ban on AOs)
To have article III standing, Ps must show:
1. They have suffered, or will suffer an injury in fact.
- Can’t be too speculative. (Lujan — Can’t just be interested in wanting to be able to enjoy the endangered animals eventually. Need to point to a concrete harm.)
- Can’t be a widely shared harm (Frothinham — tax payer was no different than any other; Mellon — Mass no different than any other state).
- The injury must be fairly traceable to the D
— D has to be the one responsible (Lujan — not obvious the secretary caused the other parties to start potentially harmful conduct) - The injury needs to be redressable by a favorable ruling
- Court has to be able to fix / help fix. (Lujan — suing secretary of internal affairs? instead of parties actually causing harm. Not clear the agency can stop it)
Article III
Standing Arguments
Court seems to think you will do a better job litigating a case if you have a potential stake in it
Also, separation of powers concern. If everyone can sue, it will increase the power of courts and let them decide the constitutionality of everything.
Article III
Political questions doctrine
Is this legal issue appropriate for judicial resolution or is it instead a matter left to the resolution of the political branches of government?
Kicks in AFTER you decide it’s a case the court can otherwise hear.
Article III
Political questions factors
- Textually demonstrable commitment
- Does something / C assign the decision to another branch?
- Ex: Senates power to convict impeached officials (Nixon v. US) - Lack of judicially manageable standards
- There isn’t a legal standard to apply, it would just really be a policy judgment.
- Ex: The word “try” in the impeachment clause doesn’t give the court a standard (Nixon v. US)
^^ these two are by far the most important
Next three factors are the “we don’t want to touch that decision” factors (Ex: war powers; FA; etc.)
- Impossibility of a court’s undertaking independent resolution without disrespecting the other branches.
- An unusual need for unquestioning adherence to a political decision already made
- Potential of embarrassment from departments disagreeing (??)
