The President and Congress

Question 1

United States v. Curtiss-Wright

Answer 1

President issued a proclamation making it illegal to sell guns to Bolivia
HOLDING: Constitutional
REASONING: President has powers beyond that of the Constitution (pre-constitution, inherent powers). Therefore, President has the power to regulate trade with FOREIGN nations (not domestically)

Question 2

Powers of the President

Answer 2

-Sole voice/representative for the United States
-The president has one voice and can keep a secret when its in the interest of the United States
- The president has spies, agents
- The president has discretion
- He makes treaties with advice and consent of the senate
-power over foreign affairs

Question 3

Youngstown Sheet & Tube Co. v. Sawyer

Answer 3

President Truman issues EO to seize steel mills b/c workers are striking; Korean War means US needs steel as a matter of national security
HOLDING: Unconstitutional
REASONING: President’s power to seize property must stem from congress permitting him to do so; the president can only execute laws not create them;

Question 4

Justice Jacksons 3 Zones of Presidential Power

Answer 4

I: Article 2 + Article 1 = maximum power

II: Article 2 only = Twilight Zone

III: Article 2 - Article 1 = minimum power

Question 5

Article 2 + Article 1 = maximum power

Answer 5

• When the president acts pursuant to the expressed or implied authorization of congress, and under executive power, his authority is at its maximum, for it includes all that he possesses in his own right plus all that congress delegate. (Normally pursuant to act of Congress)
• When the president acts with the authority expressly granted by Congress he has all the power of the Exec plus all that Congress has delegated to him.

Question 6

Article 2 only (Twilight Zone)

Answer 6

• No congressional grant and no denial of authority, concurrent authority. When the president acts in absence of either congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which the congress may have concurrent authority, or in which its distribution is uncertain.
• Inherent Powers
• Without Congressional sanction, he acts on his own independent powers only

Question 7

Article 2 - Article 1 (Minimum)

Answer 7

• Congress has impliedly rejected giving president autonomy.
• When the president takes measures incompatible with the expressed or implied will of congress, his power is at the lowest ebb, for then he can only rely on his own constitutional powers minus any constitutional powers of congress over the matter.
• When congress says DON’T DO THIS:
  The president doesn’t automatically lose under this category.
  When he acts inconsistently with the express or implied will for Congress, the Pres has the least power.
  IMPORTANT TO REMEMBER:
  Doesn’t say that the president loses when it’s at its lowest power
  It is possible that congress says No, but the president still wins

Question 8

Who can declare war?

Answer 8

Congress

Question 9

Who can make war?

Answer 9

The President

Question 10

Lawful Combatants

Answer 10

• Soldier in uniform, Geneva convention treatment
• You are fighting for a country
• You are fighting with a uniform
• Example: Fighting for Germany
• Are subject to capture and detention as prisoners of war by opposing military forces

Question 11

Unlawful Combatants

Answer 11

*Spies, saboteurs, belligerents, not entitled to “prisoner of war” treatment
*You’re not fighting for a country and
*You’re not fighting in a uniform
*You’re just fighting
*EX. Fighting for the Taliban
*We can keep them in prison indefinitely
*Subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful
*can be a US Citizen

Question 12

Ex parte Milligan

Answer 12

Indiana Military commander arrested Milligan and tried him by court martial and sentenced him to death. He applied for a writ of habeas corpus. The SC said that Congress could not authorize such military commission while the federal courts were open and operating, this was beyond their powers.

Question 13

Ex parte Quirin

Answer 13

(Nazi Saboteurs) - FDR rounded up all Nazi sabotagers and tried them in secret for violating laws of war, they filed for habeus corpus and the SC heard arguments and gave a unanimous opinion that the court denied and six men including a US citizen were executed. This case is important because the court said that even though civilians are protected from courts martial while civil courts are open, it does not protect them if they are unlawful and captured. This case drew a distinction between lawful and unlawful combatants and if they were unlawful it removed them from the purview of Miligans holding. Unlawful is anyone who does not follow laws of war or does not fight for their flag.

Question 14

A prisoner of the military authorities is not constitutionally entitled to the writ if he/she:

Answer 14

• Is an enemy alien
• Has never been or resided in the US
• Was captured outside our territory and there held in military custody as a prisoner of war
• Was tried and convicted by a military commission sitting outside the US
• For offenses against laws of war committed outside the US
• Is at all times imprisoned outside the US

Question 15

Hamdi v. Rumsfeld

Answer 15

American-born man moved to Saudi Arabia, captured in Afghanistan and taken to GTMO, then to VA and then SC. He is labeled an “enemy combatant” and US says this status justifies holding him in the US indefinitely – without formal charges or proceedings – unless and until it makes the determination that access to counsel or further process is warranted
HOLDING: Unconstitutional; Hamdi has been denied due process and therefore is entitled to a hearing that contains the protections of the Constitution.
REASONING: A combatant can be detained indefinitely (during war), but the courts need to determine whether they’re “unlawful” or not, during this trial the U.S barely has to have any proof (hearsay will do), and the burden of proof shifts to him; In passing the Authorization for Use of Military Force (AUMF) resolution, Congress authorized the President to exercise the “necessary and proper force” to combat terrorist activity.

Question 16

Boumediene v. Bush

Answer 16

• The writ of habeas Corpus does not and never has run in favor of aliens abroad, the constitution does however apply to the naval air base on Guantanamo Bay, and therefore the detainees can file for one.

Question 17

Self-Executing Treaty

Answer 17

Takes immediate effect as law, doesn’t require any additional statute or legislation

Question 18

Non-Self-Executing Treaty

Answer 18

Law making bodies have to ratify laws to execute the treaty

Question 19

Executive Agreements

Answer 19

Made by president with a foreign government (without senate ratification)
-constitutional equivalent of a treaty
-supreme over state laws
-cannot be made in violation of a prior congressional act

Question 20

Executive order

Answer 20

presidential policy that implements a federal statute or treaty without senate ratification
-settlement of claims where settlement is necessary for the resolution of a major policy dispute btwn the US and another country, and where Congress acquiesces to the President’s action

Question 21

Treaty v. Statute

Answer 21

If a treaty is in conflict with a statute, the newer one is good law (make sure the treaty is self-executing or has been executed by congress)

Question 22

Missouri v. Holland

Answer 22

US entered into a treaty with Great Britain that protected migratory birds, Missouri claimed it unconstitutionally interfered with 10th amendment rights of states to regulate birds
HOLDING: Constitutional; made under the authority of the US Gov; supreme law of the land
REASONING: Constitution expressly delegates the power to make treaties to the federal government in article 2

Question 23

Whitney v. Robertson

Answer 23

Conflict between treaty and statute; whichever is newer prevails

Question 24

Goldwater v. Carter

Answer 24

President rescinded a treaty without approval of the senate, Goldwater claims unconstitutional
HOLDING: non-justiciable political question
REASONING: Constitution details how to enter into a treaty, but not how to rescind one, therefore its a nonjusticiable political question the SC cannot answer

Question 25

United States v. Pink

Answer 25

President made an executive agreement that New York violated
HOLDING: executive agreements trump state laws
REASONING: The President is the “sole organ of the federal government in the field of international relations.” The federal government has complete power over international affairs and cannot be subject to interference from the states.

Question 26

Dames & Moore v. Regan

Answer 26

After the Iranian hostage situation, president Carter issues EO to deal with Iranian gov’t, Dames claims unconstitutional b/c executive exceeded its power
HOLDING: Constitutional; President use EO to resolve claims b/c congress acquiesced through the International Claims Settlement Act

Question 27

14th amendment breakdown

Answer 27

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
Defines a CITIZEN
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
-Privileges and immunities clause
-CITIZENS
Nor shall any state deprive any person of life, liberty, or property, without due process of law;
-PERSON
Nor deny to any person within its jurisdiction the equal protection of the laws.
-PERSON

Question 28

Person

Answer 28

protected by due process and equal protection

Question 29

citizen

Answer 29

protected by privileges and immunities clause

Question 30

Alien

Answer 30

a person; non-citizen; Congress has unrestricted powers to regulate alien immigration into the US; Federal laws almost always upheld when it comes to aliens

Question 31

Trump v. Hawaii

Answer 31

Trump EO restricts entry of foreign nationals from seven countries due to terrorism risks
HOLDING: Constitutional
REASONING: Congressional Statute gives the President the right to restrict entry of any aliens detrimental to the US; purpose of the EO is legitimate and serves to protect national security

Question 32

Fiallo v. Bell

Answer 32

Unwed fathers and illegitimate children sue b/c they claim a federal act gives preference to aliens who are children of citizen mothers, but not father
HOLDING: Congress has the power to decide b/c issue involves foreign affairs
REASONING: The determination of who receives preferential immigration status is a political question for Congress that should receive little, if any, judicial scrutiny; Aliens are guests in the country and the host can tell them when to leave

Question 33

Afroyim v. Rusk

Answer 33

Afroyim, a naturalized US citizen, had his citizenship revoked when he voted in a foreign election, under the Nationality Act, which states that a U.S. citizen shall lose citizenship if he votes in a political election in a foreign state.
HOLDING: Unconstitutional
REASONING: Congress cannot, consistent with the 14th Amend, enact a law stripping an American of his citizenship that he has never voluntarily renounced or given up.

Question 34

Rogers v. Bellei

Answer 34

Bellei was born in Italy, one of his parents is a US citizen, which by birth gives him the American Citizen title, however he’s also an Italian and when he fails to come to the US and be physically present for at least five years between the age 14 & 28 US revokes his citizenship
HOLDING: Constitutional
REASONING: Congress has the power to revoke the citizenship of a non-naturalized citizen of the United States by imposing conditions subsequent regarding residency; The 14th Amendment does not apply to people that weren’t born or naturalized in the United States and therefore Congress has the power to regulate their citizenship.

Question 35

Executive Privilege

Answer 35

-IMPLIED not express
-Qualified Privilege (not absolute)
-The constitution conjures a cloak of invisibility for the president:
An absolute immunity from DAMAGES liability predicated on official acts while in office; survives after a president’s term
-conversations with aids are presumptively privileged

Question 36

United States v. Nixon

Answer 36

DC Court subpoenaed President Nixon for tapes and documents of meetings in a criminal case for conspiracy to defraud the US
HOLDING: Subpoena upheld
REASONING: president has qualified, not absolute immunity. The criminal justice outweighed presidents presumptive privilege of immunity. Claim of immunity is absent a need to protect military, diplomatic, or sensitive national security secrets

Question 37

Balancing test

Answer 37

Confidentiality of the President’s general communications v. fair administration of criminal justice

Question 38

Cheney v. US District Court for DC

Answer 38

Sierra Club sues National energy development policy group (headed by Cheney) b/c people who are not gov’t officials are involved in the meetings, so they move for public discovery
HOLDING: Court can issue writ of mandamus WITHOUT invoking executive privilege first
REASONING: Civil suit not the same as criminal, this discovery order was much more broad than in Nixon and burden has not yet been satisfied

Question 39

Nixon v. Fitzgerald

Answer 39

Fitzgerald sued Nixon for damages after being fired from the Air Force
HOLDING/REASONING: President has absolute immunity for money damages liability for acts within the outer perimeter of his official responsibility

Question 40

Clinton v. Jones

Answer 40

Jones sued Clinton for IIED and Defamation for sexual advances he made towards her when he was Governor of Arkansas
HOLDING: NO presidential immunity for damages or suits that are from before he was president and outside the scope of his presidency

Question 41

Trump v. Vance

Answer 41

Vance issued a subpoena of Trumps personal tax records, Trump claims presidential immunity
HOLDING: Article II and the Supremacy Clause neither categorically prevent subpoenaing nor require a heightened showing to subpoena a sitting president’s records in state criminal prosecutions.
-“nothing inherently stigmatizing about a President performing “the citizen’s normal duty of … furnishing information relevant” to a criminal investigation.”

Question 42

4-part test for validity of congressional subpoena of Presidential info

Answer 42

1: courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” “Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective.
2. “courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”
3. “courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better.”
4. “courts should be careful to assess the burdens imposed on the President by a subpoena.”

Question 43

INS v. Chadha

Answer 43

Congress wants to have a one-house veto over the executive branch
HOLDING: Unconstitutional
REASONING: does not meet the constitutional requirements of Presentment and Bicameralism;

Question 44

Presentment

Answer 44

requirement that all legislation be presented to the President

Question 45

Bicameralism

Answer 45

You need the majority in both houses to pass a law

Question 46

When may one House act alone?

Answer 46

1. House has the power to initiate impeachment
2. Senate alone conducts impeachment proceedings
3. Senate alone approves/disproves of presidential appointments
4. Senate alone ratifies treaties

Question 47

Line item veto

Answer 47

UNCONSTITUTIONAL
Under article 1 section 7, President needs to sign it all or veto is all, cannot cross out portions

Question 48

Clinton v. New York

Answer 48

finds the Line Item Veto act unconstitutional

Question 49

Principle Officer

Answer 49

Appointed by the President with advice and consent of the Senate; high level federal officers like Ambassadors, SC Justices etc

Question 50

Inferior Officer

Answer 50

Don’t require confirmation by the Senate; To be appointed by the president, department heads, or judiciary; Congress cannot appoint inferior officers but may say which entity (President, Court, Cabinet) may appoint

Question 51

Removal Issues

Answer 51

Nothing in the constitution on how to remove officers; Congress cannot execute laws only make them, so SC will strike down a law that delegates executive power to Congress

Question 52

Removal by Congress

Answer 52

Congress can limit the power of the President to remove an officer
- Congress may remove an executive officer through impeachment

Question 53

Removal by Federal Executives

Answer 53

Power to remove federal executive officers basically rests with the President
-may remove executive appointees without cause

Question 54

President must have cause in order to remove

Answer 54

1. An officer apointed pursuant to a statute specifying length of term of the office; or
2. An officer who performs a judicial or quasi-judicial function

Question 55

Bowsher v. Synar

Answer 55

Congress passed an act in which they retained the power to remove the Comptroller General for inefficiency, neglect of duty, or malfeasance
HOLDING: Unconstitutional; violates separation of powers
REASONING: Constitution states Congress can only be involved in removal process through impeachment, if Congress had removal power of executive officers the legislature would have control over execution of the laws

Question 56

Morrison v. Olsen

Answer 56

Congressional act permitted an independent council to investigate and prosecute government officials upon request of the Attorney General, gave the Attorney General sole removal power with cause
HOLDING: Constitutional
REASONING: Independent council is an inferior officer; the attorney general is an executive officer so removal power stays with the executive

Question 57

removal restrictions test

Answer 57

do the removal restrictions impede on the president’s ability to perform his constitutional duty

Question 58

US Term Limits v. Thorton

Answer 58

Arkansas passed a law through state referendum that imposed term limits on members of congress by removing them from the ballot
HOLDING: Unconstitutional
REASONING: qualifications clause which outline the qualifications for members of congress were meant to be exclusive; 10th amendment doesn’t apply bc the states never held that power

Question 59

United States v. Helstoski

Answer 59

A former member of the House of Representatives (Def) was indicted by the United States on corruption charges for allegedly accepting bribes to introduce private bills, including a bill to suspend immigration laws so aliens could remain in the United States. During D’s ninth grand jury appearance, he asserted privilege under the Speech or Debate Clause and refused to further testify or produce additional evidence.
HOLDING: A member of congress may be prosecuted under a criminal statute provided that the government’s case does not rely on legislative acts or the motivation for legislative acts.
REASONING: Speech and Debate Clause prohibits introduction of evidence from a past legislative act (reference to future acts permissible)