Article II: The Executive Branch Flashcards
(23 cards)
Morrison v. Olsen “Inferior Officer” Test
An officer is considered “inferior” if they:
1) Are subject to removal by a higher Executive Branch official (e.g., the Attorney General),
2)Perform only limited duties,
3) Have limited jurisdiction, and
4) Have limited tenure.
Where do the presidents powers come from?
The constitution (article II) or a valid act of congress.
Article. II, Section I
Vests the power of the executive branch soley in the president.
Article II Sections 2-3
Lists the Presidents core powers
1) Commander in Chief of the Military
2) Power to make treaties
3) Appointment Power
4) Grant Pardons
5) Veto power
6) Take care clause = faithfully execute the laws
How does appointment for principal and inferior officers work?
Art. II, §2, cl. 2,
Principal officers (e.g., Cabinet secretaries, federal judges) → Must be nominated by the President and confirmed by the Senate.
Inferior officers → Congress can choose whether they require Senate confirmation.
If Congress does not pass a law to allow alternate appointment, then the default is Presidential nomination + Senate confirmation.
If Congress vests appointment elsewhere, Senate confirmation is not required
What is the Executive Power Test from Youngstown Sheet and Tube Co. v. Sawyer?
Justice Jackson Concurrence -
1. Category 1 – Maximum Power (President acts with Congressional Authorization):
When the President acts with express or implied authorization from Congress, his actions are at their highest.
Presidents con. authority + congresses authority
- Category 2 – Zone of Twilight (Presidential Action in the Absence of Congressional Grant or Denial):
When the President acts without clear Congressional authorization or prohibition, his actions are in the “zone of twilight”.
Presidents powers are uncertain, it depends on circumstances like
1) Nature of the issue
2) Historical Practice and
3) Need for swift executive action
- Category 3 – Lowest Authority (Presidential Action Against Congressional Will):
Powers are at their lowest and the action must rest soley on the presidents independent constitutional powers.
What was the holding in Youngstown?
The presidents powers to issue executive orders must come from congress or the constitution. Congress explicitly rejected the use of seizure to solve labor disputes as unconstitutional. The presidents authority to seize must therefore come form his powers in the constitution soley and it does not.
Whats the rule from Hamdi v. Rumsfeld?
O’Connor, Rehnquist, Kennedy, Bryer Souter Ginsburg in judgment
A U.S. citizen detained by the government as an enemy combatant is entitled to notice of the charges and an opportunity to be heard to challenge the detention before a neutral decision-maker. The Executive does not have unchecked authority to detain citizens without due process, even during wartime.
Balancing Test from Hamdi v. Rumsfeld?
The Court uses the balancing test to determine the minimum procedural protections that must be afforded to a U.S. citizen detained as an enemy combatant
1)The private interest affected —
2)The governmental interest, including:
3) The risk of erroneous deprivation of liberty under current procedures, and the value of additional safeguards —
Who/ what was the dissent in Hamdi?
Ginsburg concurred and dissented in part, saying that the the act did not authorize detention in light of the non-detention act. Congress didn’t authorize his detention so executive should have unilateral power over decisions.
Thomas: Hamdi shouldn’t have a trial because the judiciary should not define war powers that is the role of congress. Having the government to provide additional proof for detentions would compromise national security.
Scalia, Stevens: A us citizen may be detained only if 1)Congress suspends a writ of habeas or 2) the individual is charged an tried. Hamdi’s detention is unconstitutional.
Rule from Boumediene v. Bush?
Detainees at Guantanamo Bay have a constitutional right to seek habeas corpus and congress cannot eliminate access to habeas corpus without providing an adequate alternative.
Who and what was the holding in Boumediene?
Dissent?
Kennedy, Stevens, Souter, Ginsburg and Bryer
Noncitizen detainees held at Guantanamo have habeas corpus privilege. It is under total U.S. sovereignty and control, justifying habeas corpus. The CRT lacks essential procedural safeguards that are not equivalent to habeas.
Scalia, Roberts, Thomas, Alito- the DTAA procedures were constitutionally sufficient and don’t require suspension of the writ. Habeas doesn’t apply to foreign nationals held outside U.S. jurisdiction.
Roberts- Striking down the MCA eliminates the most generous procedural protections given to foreign detainees.
Rule from Trump v. Hawaii?
When the President acts pursuant to broad delegation under the Immigration and Nationality Act (INA), and the policy facially involves national security and does not violate a specific constitutional prohibition, courts will apply a highly deferential rational basis review—even when constitutional concerns like equal protections are raised.
Majority and holding in Trump v. Hawaii?
Roberts, Kennedy, Thomas, Alito, Gorsuch
Under the INA the president has broad authority to suspend and restrict entry of foreign nationals into the US when it is a national security concern. The establishments clause does not extend to to protecting foreign nationals outside the US. Using a rational basis review, the government showed a legitimate government interest tin national security concerns based on global review of information sharing standards.
Concurrence and Dissent in Trump v. Hawaii?
Concurrence Thomas- Universal injunctions are growing in popularity and unconstitutional.
Dissent- Sotomayor and Ginsburg- cases under the establishment clause should get heightened review but even on a rational basis review the proclamation is unconstitutional as it is motivated by religious bias. The courts majority didn’t provide enough evidence the proclamation is about national security.
Current presidential immunity standard?
United States v. Trump
1) The president is absolutely immune from prosecution for acts within his conclusive and preclusive constitutional authority. (from constitution or act ot of congress)
2) The president has presumptive immunity for other official acts within the outer perimeter of his official duties UNLESS the government rebuts that presumption by showing prosecution does not intrude on executive authority or separation of powers.
3) The president has no immunity for unofficial acts.
4) Evidence related to official acts cannot be used in criminal prosecution even for unofficial conduct.
Majority in U.S. v. Trump?
Roberts, Barrett, Thomas, Kavanaugh, Alito, Gorsuch
Concurrences in U.S. v. Trump?
Justice Barrett- Agrees with the majority but disagrees that official acts can’t be used in prosecution for unofficial conduct. Official acts should be admissible in unrelated criminal charged. Constitution does not rant president sole power over all executive powers, congress has concurrent authority to regulate the presidents official conduct.
Thomas: The special prosecutors appointment is unconstitutional and he didn’t have power to prosecute trump.
Dissent in U.S. v. Trump?
Sotomayor, jackson, Kagan
This is decision establishes an imperial presidency allowing presidents to commit crimes without accountability setting a dangerous precedent. The most powerful individual in the U.S. is now a law unto himself.
Rule from United States v. Nixon?
The President does not have an absolute, unqualified executive privilege to withhold information in criminal proceedings. Executive privilege must yield to the demands of due process and the fair administration of justice.
What did the Court hold in Judge Nixon v. US case?
Impeachment is a political question not subject to judicial review.
Holding from United States v. Nixon?
The Court recognized a qualified executive privilege grounded in the need for confidentiality in presidential communications, especially those involving military, diplomatic, or sensitive national security matters.
But It Is Not Absolute: The privilege is not absolute and cannot be used to withhold evidence in a criminal trial when that evidence is demonstrably relevant, specific, and essential to the administration of justice.
Judicial Review Is Final: The Court reaffirmed the role of the judiciary in interpreting the law, asserting that courts have the final word on claims of executive privilege when the outcome of a criminal trial is at stake.
Rule from Clinton v. Jones
O’Connor, Stevens, Scalia, Kennedy, Souter, THOMAS, Ginsburg, Bryer
A sitting President is not immune from civil litigation for unofficial conduct that occurred before taking office, and such litigation does not violate the separation of powers.
