The Federal Executive Power Flashcards
Steps in order to determine whether Presidential conduct is constitutional?
(1) What is the challenged Presidential conduct?
(2) What is the nature of the challenged conduct? Legislative or executive?
(3) If executive, must ask whether President has congressional authorization or constitutional authority for his actions. If yes, constitutional. If not, unconstitutional.
(4) If legislative, does President have inherent authority to act?
DOES ARTICLE II GRANT THE PRESIDENT INHERENT POWERS?
Article I provides that “all legislative powers herein granted shall be vested in Congress.” However, Article II does NOT limit the president to powers “herein granted”; it is therefore argued that the President has authority not specifically delineated in the Constitution
Youngstown Sheet & Tube Co. v. Sawyer
Facts: In 1952, the steel union gave notice of a nationwide strike. President Harry Truman issued an executive order a few days before the strike was to begin, directing the Secretary of Commerce to take possession of most of the steel mills and keep them running. This action is legislative in nature.
Holding: The President does NOT have the authority to take possession of and operate the Nation’s steel mills.
4 Views on the President’s inherent legislative powers under the Constitution
View #1 - Black: There is no inherent presidential power; the President may act only if there is express constitutional or statutory authority. This is the majority view promulgated by Justice Black – it is an incredibly formalistic approach.
View #2 - Douglas: The president has inherent authority unless his actions interfere with the functioning of another branch of government or usurp the powers of another branch. separation of powers argument.
View #3 - Frankfurter: The President may engage in certain practices, not specifically authorized by Congress or the Constitution if:
(1) The President has engaged in the practice over a fairly lengthy period of time, and
(2) Congress has never before questioned the action engaged in by the President; effectively acquiescing to the action. Thus, there is an inherent authority in some circumstances for the President to act legislatively is referred to as a historical gloss.
View #4 – Jackson: The President functions in three categories when acting:
- Express Authority by Congress – When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. President has whatever authority Congress has given him + his own constitutional authority
- Twilight Zone – When Congress has not given the President any power, but has yet to deny him the power. In this area, any actual test of power is likely to depend on the events and circumstances of the case.
- No Congressional Authority – When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebbs. The President can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
Executive Privilege
Refers to the ability of the President to keep confidential conversations with or memoranda to or from advisors. It is sometimes defended as important to protect national security. The Constitution does not mention such authority, but presidents have claimed it throughout American history.
US V. Nixon (Absolute and Qualified Immunity)
Analysis:
The President first argued that he was absolutely immune from the judicial process based on confidentiality. Absolute privilege means that the President’s actions cannot be questioned. The Court rejects this argument – nowhere in the Constitution is there an explicit reference to a privilege of confidentiality.
The Court in Nixon v. Fitzgerald does, however, recognizes that the President has absolute immunity from private actions based on any actions taken in his official capacity.
The President then argued that he had qualified immunity. Qualified immunity applies to high-level executives. The Court applied a balancing test – it weighs the generalized interest in confidentiality against the effects of such a privilege on the fair administration of justice.
The interest in preserving confidentiality is weighty and entitled to great respect. On the other hand, the allowance of the privilege to withhold evidence that is relevant in a criminal trial would cut deeply into the guarantees of due process of law and gravely impair the function of the courts.
The Court concluded that the effects of the privilege on the judicial process outweighed the President’s interest in maintaining the privilege, and ordered the President to turn over the subpoenaed material.
The President as Commander in Chief: Allocation of War-Making Authority
The Constitution is ambiguous on the allocation of war-making power as between the President and Congress. The President is made commander-in-chief of the armed forces, while Congress is expressly powered to declare war.
In the Prize Cases, the Supreme Court held that the President has no power to initiate or declare war against a foreign nation or a domestic state. The President needs authorization from Congress to use military and naval forces. However, the President is able to act without congressional approval to defend a sudden attack.
Hamdi v. Rumsfeld (Category 1)
Facts: Hamdi, an American citizen, was captured in Afghanistan. He was held as an enemy combatant without formal charges or proceedings under authorization of the executive branch.
Analysis:
What is the nature of the challenged conduct? Executive!
Does the President have congressional authorization for this action? YES! The Court held that Congress authorized Hamdi’s detention through the Authorization of Use of Military Force Resolution. The AUMF grants the President authority to use all necessary and appropriate force against those nations, organizations, or persons he determined planned, committed or aided in the 9/11 terrorist acts.
The Court concluded that the detention of individuals, like Hamdi, who fought against the US in Afghanistan is a valid exercise of the “necessary and appropriate force” Congress has authorized the President to use.
The Role of the President in Foreign Affairs: US V. Curtiss-Wright Corp. (Category 1)
Facts: A joint resolution of Congress expressly authorized the President to declare it illegal to sell weaponry in the US to countries engaged in armed conflict in the Chaco region. Pursuant to the joint resolution, the President issued a declaration declaring it illegal to sell weapons to countries at war in the Chaco.
Issue: Is the proclamation within the executive power of the President?
Holding: YES!
The President’s action is executive in nature. He is enforcing a joint resolution promulgated by Congress. This case falls within Justice Jackson’s first category.
If the President issued the proclamation without the authorization of the joint resolution, his action would be considered legislative in nature. And the next question would be whether the President has authority to act in this area. And he does – the executive has always had exclusive authority in the area of foreign affairs. The President’s unique knowledge concerning confidential information makes it appropriate for him to issue occasional proclamations concerning foreign affairs, with or without congressional approval.
Dames & Moore v. Regan (Category 2)
Facts: In 1979, American Embassy personnel were seized, and held hostage in Iran. On January 20, 1981, the Americans were released pursuant to an executive agreement that provided that all litigation between the government of each party and the nationals of the other would be resolved through arbitration.
Issue: Whether the President has the power to issue an order settling international claims? YES.
Holding:
The President’s action is executive in nature.
Does he have congressional authority to engage in this action? The Court recognized that Congress did not specifically authorize the President to suspend claims and send them to a tribunal. However, it can be inferred from the International Economic Powers Act and the Hostage Act that the President would have this authority – these acts give the President broad discretion to act when responding to hostile acts of foreign nations.
Additionally, there is a history of congressional acquiescence in the conduct of the sort engaged in by the President.(Frankfurter)
Medellin v. Texas (Category 3)
Facts: Medellin a citizen of Mexico, was convicted of murder in state court and sentenced to death. At the time this case arose, the US was a signatory of the Vienna Convention, which provided that the ICJ would have jx over the case. The ICJ held that Medellin was not informed of his consular rights, and ordered US courts to reconsider his sentencing and conviction. President Bush issued a Memorandum, providing that the US would discharge its obligations under the decisions of the ICJ.
Issue: Whether the President has the authority to discharge the US obligations under the Vienna Convention? NO!
Holding:
The President’s action is legislative in nature. He is acting of his own accord to make domestic law. The President does not have the power to unilaterally convert a non-self- executing treaty into a self-executing one. This responsibility falls to Congress.
Does the President have inherent authority to engage in such an action? NO! The President’s Memorandum is not supported by a long-standing practice of congressional acquiescence, but is rather unprecedented.
Legislative Veto
a device which enables Congress to monitor actions by the executive branch – namely administrative agencies. Typically a legislative veto provision is included as part of a congressional statute delegating certain powers to federal agencies. The veto provision authorizes Congress (one or both houses) to veto any regulation adopted by the administrative agency. The purpose of the veto provision is to allow Congress to retain control over the executive agency it created.
INS V. Chadha
Facts: Chadha is an East Indiana who was lawfully admitted to the US on a non-immigrant student visa. When his visa expired, the INS ordered Chadha to show cause why he should not be deported. After a hearing, an immigration judge ordered that his deportation be suspended. Pursuant to the Immigration and Nationality Act, the House (alone) has the power to veto the suspension of deportation, and did so here.
Holding: The constitutional veto provision contained in the INS is unconstitutional for the following reasons:
Violates bicameralism – the Constitution provides that legislation must be passed by both houses. This forces Congress to carefully deliberate all laws and it serves to minimize the influence of factions. The legislative veto here only requires the approval of the House – the Senate does not vote.
Violates the Presentment Clause – the Constitution provides that legislation must be signed by the President before it is enacted; and the legislative veto here was not approved by the President.
