Structure of Government- Executive Power

Question 1

Facts:President issued Executive Order 10340, which directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The President sent two letters to Congress and even though 12 days went by Congress had still not taken action.

The steel mills argue that the Presidents order amounts to lawmaking, a legislative function which the Constitution has expressly confided to Congress. The governments positon is that the order was made on findings of the President that his action was necessary to avert a national disaster that would result from a stoppage of steel production and that in meeting this emergency the President was acting within the aggregate of his constitutional powers as the Nations; Chief executive and Commander in Chief of the Armed Forces of the US.

Answer 1

youngstown (1952)

Issue:Whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills?

Rule:

Holding:Court HOLDS THAT THE ORDER CANNOT PROPERLY BE SUSTAINED AS AN EXERCIZE OF THE PRESIDENT;S MILITARY POWER AS COMMANDER IN CHIEF OF THE ARMED FORCES.;

Justice Jackson Concurring THIS OPINION HAS BECOME THE LAW AS IT HAS BEEN CITED SO MANY TIMES BY LATER CASES. THIS BECOMES LAW INSTEAD OF BLACK’S OPINNION: Holds that practice under the Constitution will integrate the dispersed powers of the 3 branches into a workable government. Finds that Presidential powers are not fixed but flucatate, depending upon their disjunction or conjunction with those of Congress.

The different stages of Presidential Power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority or in which distribution is uncertain. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congess, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. A presidential claim to a power at once so conclusive and preclusive must be scruntized with caution, for what is at stake is the equilibrium established by our constitutional system.

This seizure is only covered by the severe tests under the 3rd grouping. Thus, the court can only sustain the President only holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Finds that the pupose of the Constitution is to not only grant power but to keep it from getting out of hand.

-Finds that declaration of war is entrusted only to Congress. While a state of war may exist without a formal declaration, the President still must have restrictions placed on him when it comes to his conduct of foreign affairs.

The presidents order directs that a presidential policy be executed in a manner prescribed by the Constitution and this is unconstitutional. The Constitution did not subject Congress lawmaking power to presidential or military supervision.

The Founders of the Nation entrusted the lawmaking power to the Congress alone in both good times and bad.

Rule: President was not acting within the aggregate of his constitutional powers as the Nations Chief Executive and the Commander in Chief of the Armed Forces

Question 2

** Facts: **Chadha was an East Indian living in the US over 1 year after his student visa had expired. He was order by the INS (Immigration Service) to show cause why he should not be deported. Chadha filed a suspension of deporation under Sec. 244 of the Act which permits the Attorney General to suspend deportation and grant an alien permanent residence in the US if he has resided in the country for over 7 years and is of good moral character. The immigration judge suspended his deportation under the he Act and then either House of Congress had the power under the Act to veto the Attorney Genera’s order that Chadha not be deported.

The House of Reps acting alone passed a resolution vetoing the immigration judge’s earlier decision to suspend Chadha’s deportation. Chadha then moved to terminate the deportation proceedings which had started again by holding that Sec. 244 was unconstitutional. The INS THEN JOINED CHADHA IN HIS APPEAL THAT ACTION UNDER SEC. 244 VIOLATED THE DOCTRINE OF SEPARATION OF POWERS.

Answer 2

INS v. Chadha (1983)

Issue: Whether action of one House of Congress under Sec. 244 violates strictures of the Constitution?

**Holding: **-Court finds that without this challenged provision of Sec. 244, this could have only been achieved through legislation requiring deportation. Since Congress had previously delegated to the Exec branch, in this case the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances, Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.

Since it is clear that the action by the House under sec. 244 was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Article I. To preserve the separation of powers and checks, the carefully defined limits on the power of each Branch must not be eroded.
To accomplish what has been attempted by the House in this case requires: passage by a majority of both Houses and presentment to the President.

**Rule: **Court turns to the Presentment Clauses: The decision of the Framers to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President. Also, the Presentment Clauses allow the Pres to defend himself and to protect society from the passage of haste or poorly designed laws.

Bicameralism: The bicameral requirement of Art 1. Sec. 1,7 was of scarcely less concern to the Framers than was the Presidential veto and the two concepts are interdependent. By providing that no law should take effect without the concurrence of the prescribed majority of Members of both Houses, the Framers reemphasized their belief that legislation should not be enacted unless it has been carefully considered by the Nation’s elected officals.

Question 3

**Facts: **This dealt with the real problem of the Attorney General not being trusted to investigate mishandlings within the Department because they came from the same political party. Therefore, impartiality was questioned in this case.

• The Attorney General has the responsibility to do an investigation to see if any improper actions were taken by officials.
• The Case is a good precedent even though the Act in question for this case does not exist after the Clinton scnandal. Therefore, instead of independent prosecutors we now have special prosecutors.

Answer 3

Morrison v. Olson (1988)

Issue: Does the Independent counsel provision violate the Appointments Clause of the COnstitution, Art II. Sec. 2 Clause 2.

**Holding: **- THIS HELD THE CONSITTUTIONALITY OF THE FEDERAL PROSECUTOR LAW. Congress did not renew the law so we now use an indpenent prosecutor mechanism where someone is appointed by the Attorney General in cases where the Attorney General is seen to have a conflict in interest so it removes any impartibility. Therefore, we still have this problem

Rule: Article 2 Section 2 Clause 2 talks about the appointment powers of the Executive.

• Most of the controversies of the APPOINTMENT CLAUSE HAS TO DO WITH MEMBERS OF THE SUPREME COURT.
• The appointment power is limited to the President, head of the departments and courts of law. Therefore, Congress cannot have the appointment power.

Question 4

Facts: Case arose because of concern that US munitions manufacturers were arming both sides of a bar in South

America - Congress adopted a law that empowered the pres to issue a proclamation making
illegal further sales of arms to the warring nations
- The case arose at a time when the Court was invalidating laws pertaining to domestic affairs
as impermissible delegations of legislative power to the executive.
- The Court upheld the delegation to the president to stop munitions shipments and spoke
generally of a fundamental difference between domestic and foreign policy

Answer 4

US v. Curtiss (1936)

Holding: The executive proclamation satisfied the Joint Resolution

• foreign affairs power was vested in the national gov’t as a whole AND the President of the US has ‘plenary’ powers in the foreign affairs field that was not dependent upon congressional delegation.
• John Marshall - ‘ president is sole organ of the nation in its external relations, and is sole representative with foreign nations. Any act to be performed by the force of the nation is to be performed through him”

**Issue: **whether the Joint Resolution, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the law-making power.

Rule: basic question f whether the president inherently has greater powers in the area of foreign policy compared w/ domestic affairs. Power to conduct foreign policy does not stem from the Const - but instead is intrinsic to nationality

Executives love this decision because it says when dealing with foreign affairs, the power of the Presidency is to be at its highest. Therefore, there is more power in the Executive in foreign affairs than domestic affairs.
-This case is also adding on a congresstion delegation of power.
Therefore, everytime a President wants to justify doing something in a foreign realm, PRESIDENT’S WILL ALWAYS CITE THIS CASE AS IT GIVES THE PRESIDENT THE GREATEST LATITUDE OF POWER.
-Today, we say that there is a principle of delegation by Congress to the executive in domestic matters. The gap between the principle of delegation between domestic and foreign matters is now a lot smaller than at the time this case was decided. However, there is still greater latitude in foreign matters than domestic.

Question 5

**Facts: **Never has USSC declared an exec agreement unconstitutional as usurping the Senate’s treaty approving function

• Court has sided w/ the Pres EVERY time there has been a challenge to an exec agreement
• Dames & Moore v Regan
• shortly before leaving office in 1981, Pres Jimmy Carter negotiated an agremeent w/ Iran
  whereby that country would free American hostages being held in Tehran in exhcange for
  the US lifting a freeze on Iranian assets in the US
• After Iran serized the American embassy in Iran and held its occupants hostage, Pres Carter
  froze all assets of the Iranian gov’t in the US
• The exec agreement lifted this freeze and also provided for an end to all suits pending
  against Iran in the US Courts
• Such claims would be resolved instead in a new Iran-US claims Tribunal
• ^ Exec agreement was challenged by Dames & Moore, which had filed a lawsuit in federal dist court
  against Iran for breach of contract for almost $3.5 million
• ^ USSC court rejects the challenge to the exec agreement

Answer 5

Dames & Moore v. Regan (1981)

**Issue: **Whether the President’s acts of nullifying the attachments and ordering the transfer of all frozen assets are specifically authorized by Congress

• Whether the President has authority to suspend claims pending in American courts.

**Rule: **This case says that Congress has given the President legislative authority by allowing him to issue executive orders.

• If Congress had disapproved of what was done in this settlement and by this executive order then that would put us in a different situation.
• This case fell into the 1st category that Jackson had established, so we have the President’s power in foreign affairs.

**Holding: **Because the President’s actions in nullifying the attachments and ordering the transfer of assets were taken pursuant to congressional authorization (section 1702(a)(1) IEEPA) - it is supported by the strongest of presumptions and widest latitude of judicial interpretation and the burden of persuasions and widest latitude of judicial interpretation and the burden of persuasion rests heavily on any who might attack it.

• YES - based on the legislation ( IEEPA and Hostage Act) which Congress has enacted in the area of the President’s authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order.

Question 6

Facts: One week after September 11, Congress passed a resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations or persons he determined planned the attacks (Authorization for Use of Military Force).

-In June 2002, the P’s father filed a petition for a writ of habeas corpus. The father also contends that his son was in Afghanistan to do some relief work and that was he 20 years old at the time he was captured. Furthermore, the father alleges that his son received no military training. On the other hand, the Government contends through its “Mobbs Declaration” that the P traveled to Afghanistan in July 2001 and that he thereafter affiliated with a Taliban military unit following the attacks of September 11th. Also, the Report claims that the P was labeled as enemy combatant based upon his interviews and in light of his association with the Taliban.

Answer 6

Hamdi v Rumsfeld (2004)

Issue: Whether the Executive has the authority to detain citizens who qualify as enemy combatants?

Rule: The Court articulated this test in Mathews v. Eldridge, that said that the PROCESS DUE IN ANY GIVEN INSTANCE IS DETERMINED BY WEIGHING THE PRIVATE INTEREST THAT WILL BE AFFECTED BY THE OFFICAL ACTION AGAINST THE GOVERNMENT’S ASSERTED INTEREST INCLUDING THE FUNCTION INVOLVED AND THE BURDENS THE GOVERNMENT WOULD FACE IN PROVIDING GREATER PROCESS.

**Habeas Corpus is found in Article 1 Section 9 Clause 2 and it holds that the privilege of the Writ of Habeas Corpus shall not be suspended, unless when Cases of Rebellion or Invasion the public safety may require it. **

**Holding: **: Finds that neither the process proposed by the Government nor the process apparently envisioned by the Dist. Ct below strikes the proper constitutional balance when a US citizen is detained in the US as an enemy combatant. Therefore, a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. However, the Court also recognizes that the circumstances of the case may demand, aside from these core elements, that enemy combatant proceedings may be tailored to allievate their uncommon potential to burden the Executive at a time of ongoing military conflict and thus things such as heresay and a presumption in favor of the govt’s evidence may be used.

Question 7

Facts: Hamdan filed a writ of habeas corpus and before he received a hearing on his writ a military tribunal found him as an enemy combatant.

Hamdan was caught in Afghanistan and is not a US Citizen. He is being held in Guatanomo Bay and there is no sovereign US territory there.
-Hamdan is challenging that conspiracy is not authorized by a Congressional Act and the procedures that the President is trying him on violate the most basic principle of a fundamental human right.

Answer 7

Hamdan v. Rumsfeld (2006)

Holding: The Court issued a 5-3 decision holding that it had jurisdiction, that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice and the Geneva Convention (which the court found to be incorporated into the Uniform Code of Military Justice)

**Issue: **The case considered whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention.

**Rule: **The majority of the Court finds that the procedures here render the commission illegal because the Geneva Convention applies. Common Article 3 of the Geneva Convention applies here. The majority disagreed with the Appellate Court’s reasoning because it deals with any nations conducting any affairs outside of our borders. Therefore, the majority finds that the United States is forced to follow Common Article 3.

-The Court does not grant the writ to release him. The majority just said that the expansion of this Commission was unconstitutional.

Question 8

Facts: It is a group of petitioners in this case. The thing they have in common is that they are all non-citizens and are being held in Guatanomo.

Congress enacted the Military Commissions Act (MCA). Court must decide whether Section 7 of the MCA denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment.
-Congress can take away the Appellate jurisdiction of the Supreme Court. The Court said if the MCA is valid that the Court has to dismiss the case because the Court then lacks subject matter jurisdiction over the case.

Answer 8

Slaughter-House Cases

**Rule: **It is a group of petitioners in this case. The thing they have in common is that they are all non-citizens and are being held in Guatanomo.

The Supreme Court creates a 3 factor test for Eisentrager. The Supreme Court applies it on a case by case test. These 3 factors are relevant in determining the reach of the Suspension Clause:

1. The Citizenship and status of the detainee and adequacy of the process through which that status determination was made. Status means whether their enemy combatants.
2. The nature of the sites where apprehension and then detention took place
3. The practical obstacles inherent in resolving the prisoners entitlement to the writ.

Issue: Can the Suspension Clause (Article 1 Sec. 9 Clause 2)

Holding: THEREFORE, THE COURT FINDS THAT THE 1ST FACTOR IN THE SUSPENSION IS WEIGHED HEAVILY ON THE SIDE OF THE DETAINEE AND WHILE THE 2ND AND 3RD FACTOR MAY BE WEIGHED SLIGHLY TOWARDS THE GOVERNMENT IT DOES NOT OUTWEIGHT THE HEAVILY WEIGHTED 1ST FACTOR FOR THE DETAINEE AND THUS THE COURT FINDS IN THEIR FAVOR.

The Court finds that the MCA is not constitutional because the Petitioners have habeas rights Therefore, since the CRST is not an adequate replacement for habeas corpus and therefore the MCA is unconstitutional. Furthermore, since the MCA is not constitutional the provision that strips the court of its jurisdiction is not constitutional.