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Con Law > Separation of national powers/ Exec powers > Flashcards

Separation of national powers/ Exec powers Flashcards

1
Q

What does Youngstown demonstrate?

A

case sets out framework for understanding presidential power

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2
Q

3 categories for executive power

A
  1. zenith
  2. twilight zone
  3. lowest ebb
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3
Q

zenith

A

acts pursuant to an express or implied authorization, presumption of validity

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4
Q

twilight zone

A

murky area of fact and case specific situation, Congressional silence, inherent power?

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5
Q

lowest ebb

A

acts against express will of C

only permissible where C has acted unconst.

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6
Q

Presidential power question

A
  1. under which category does it fall
  2. what other issues present themselves
    a. non-delegation
    b. bicameralism
    c. presentment
    d. appointments or removals
  3. Q concerning state power
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7
Q

Where are the Pres’s enumerated powers found?

A

Art. II

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8
Q

What powers does the Pres have?

A

To execute, administer, and enforce laws passed by C.
Commander in chief, negotiate treaties.
To ensure laws are adequately enforced
Otherwise, must justify actions through provisions in const.

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9
Q

What does Dames and Moore . Regan do?

A

Case states that 3 categories of pres power are too oversimplified. Power is on a continuum

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10
Q

Nondelegation doctrine

A

C cannot give away too much authority. Legislatuve power belongs to C

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11
Q

Where is the nondelegation doctrine found?

A

Art I, §1, cl. 1

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12
Q

Why would C want to delegate powers?

A

lack of time
lack of expertise
allow flexibility in regulation
buck-passing

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13
Q

What does Whitman v. American Trucking Association demonstrate?

A

Case says if a nondelegation problem exists, then only C can remedy through a more specific statute

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14
Q

intelligible principle

A

law must guide those charged w/ administering the law

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15
Q

standard for C’s delegation of power

A

Ct very deferential
the greater the power delegated, the more specificity required
only been overturned twice

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16
Q

legislative veto

A

C reservation of power to veto exec action

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17
Q

Are legislative vetoes const.?

A

No. Violate exec power. Congressional acts require bicameralism and presentment.

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18
Q

presentment clause

A

every bill must be presented to Pres befre becoming law

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19
Q

Where is the presentment clause found?

A

Art I §7, cl 2 & 3

20
Q

Where is the bicameralism requirement found?

A

Art. I §7, cl 2

21
Q

bicameralism

A

every legislative act must pass through both House and Senate

22
Q

When can C act unilaterally?

A

impeachment
advice/ consent of pres appointments
ratifying treaties

23
Q

What can C do instead of legislative veto?

A 
reject agency decisions through new laws
enact more detailed legislation
conduct oversight hearings
include susnset provisions
threaten budget reductions
political--call press conferences
24
Q

What did Clinton v. NY show?

A

case determined line item vetoes are unconstit.

25
Q

What did Spreitsma v. Mercury Marine do?

A

Case showed where C silent on an issue, even if they considered the issue, there is no preemption. Expresio unis does not apply

26
Q

Where is the power to appoint fed officers found?

A

Art II, §2, cl 2

27
Q

Who has the power to appoint officers?

A

Pres nominates, Senate gives advice and consent

28
Q

Who can’t C appoint?

A

any person who executes federal law (inferior or superior)

29
Q

What did Freytag and Buckley demonstrate?

A

Cases outlined who is an officer

30
Q

Who is an officer?

A

appointee who exercises significant discretion in the enforcement of fed law

31
Q

What power does an officer have?

A

More than advisory power or ministerial duties. More than minimis or tirivial. Not members of legislature

32
Q

Line item veto

A

vetoing specific items within a larger statute

33
Q

Why is a line item veto unconst.

A

Gives pres power to veto provisions after bill has become law

34
Q

What can Pres do instead of line item veto?

A

Presidential signing statement

35
Q

Presidential signing statement

A

Pres alerts public that he will not enforce a certain provision or that he believes it to be unconst

36
Q

Superior or inferior officer?

A
  1. Subject to removal by higher exec branch?
  2. empowered to perform limited duties or more brad?
  3. Limited SMJ?
  4. Limited tenure?
37
Q

What is a head of department?

A

Like a cabinet-level dept. Superior officer

38
Q

What positions can C delegate for departments to appoint?

A

inferior officers, not superior

39
Q

Examples of “departments”

A

Treasury. Defense, Agriculture, Commerce, Labor

40
Q

Who can appoint inferior officers?

A

C decides who will appoint them: Pres alone, Cts of Law, or Heads of Dept

41
Q

Who are heads of depts?

A

all heads of cabinent-level depts and agencies. Not lesser bureaus, commission, or regional offices

42
Q

Who are cts of law?

A

At least Art I and Art III cts. Freytag leaves unclear

43
Q

Where is the Appointment Clause found?

A

Art. II, §2, cl. 2

44
Q

Is a removal limitation const.?

A

Does the restriction of removal interfere with the pres doing his job?

45
Q

What did Morrison v. Olsen do?

A

Set out a somewhat ambiguous standard that if a restriction for removal is of such a nature that it impedes the Pres’s ability to perform his Const. duty

46
Q

How to determine if a removal limitation impede’s Pres’s ability to perform his Const. duty

A
  1. siginificance of the office
    a. scope of duties, breadth of officers jx, length of tenure
  2. nature of the restriction
    a. who removes officer, for what causes
47
Q

What did Humphry’s Executory decide?

A

C may limit removal of officers of independent agencies but not of cabinet level officials

Con Law (8 decks)

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