Executive Powers Flashcards
(45 cards)
Executive Authortiy
Law making v. Law enforcement
Article II vests the executive power in the President and provides that the President “shall be Commander in Chief of the Army and Navy of the United States.” and “shall take Care that the Laws be faithfully executed.” As Commander-in-Chief the President has an obligation to prosecute war effectively. In order to do that, he needs all the tools to carry out that function in an effective manner. Court tells us that commander-in-chief powers pertain to authority in the “theater of war.”
The President may enforce laws by issuing executive orders; however, the power to issue an executive order must stem from an act of Congress or from the Constitution itself. Justice Jackson’s concurrence in Youngstown serves as the analytical framework for determining whether an executive order is a constitutional enforcement of the law or an unconstitutional creation of law. (1) When President acts pursuant to an act of Congress, he possesses maximum authority, (2) when
the President acts absent congressional legislation, his authority rests on whether he has some independent power conferred by the Constitution, also known as the twilight zone, (3) when President acts in a manner incompatible with the express or implied will of Congress, it is unconstitutional.Youngstown.
President Powers
(Highest to Lowest)
Hamdan (lowest Ebb)
when President acts in a manner incompatible with the express or implied will of Congress, it is unconstitutional.
Hamdi (Mid Ebb)
when
the President acts absent congressional legislation, his authority rests on whether he has some independent power conferred by the Constitution, also known as the twilight zone,
Germandi (highest ebb)
(1) When President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its maximum
Commander-in-Chief/Military Power:
The President has an obligation to prosecute war effectively. In order to do that, he needs all the tools to carry out that function in an effective manner. Court tells us that commander-in-chief powers pertain to authority in the “theater of war.”
Inherent power/Emergency Power:
President argues that in times where national security is implicated, the President has the power to act where the vital interests of the nation are threatened.
Youngstown
In Youngstown, when President Truman issued an executive order granting them the power to seize and operate steel factories arguing that as Commander and Chief he may act in order to avert a nationwide steel strike during the Korean War the courts held that the President cannot act without an act of congress unless he derives his authority to act from a provision of the constitution.
F:
In order to avert a
nationwide steel strike during the Korean War, Truman issued an
executive order granting the Secretary of
Commerce authority to seize and operate the steel factories. He argues that the country is at war and needs steel. By doing this, Truman
rejected the remedy
presented by the
Taft-Radley Act which would have allowed him to get an injunction
against the strikes. He essentially tells
Congress, “if you don’t like what I’m doing, tell me to stop.” He cites his executive power and his power as
Commander-in-Chief.
H:
Outcome: The
President’s order is
unconstitutional.
The President’s order amounted to
law-making, a legislative function that the
Constitution has
expressly confided to Congress and not to the president. Seizing steel mills which are private property for public use is unconstitutional
under the Due Process Clause of the 5th
amendment which posits that the government
cannot deprive an
individual of private
property unless
authorized by law and given compensation. The only constitutional
provision that may
possibly allow this act is if Congress passes
legislation to this effect and the President
executes that legislation by taking action.
Constitutional
Art. II § 3 of the
Constitution provides that the President has executive power to carry
R:
The President cannot act without an act of
Congress unless he
derives his authority to act from a provision of the Constitution.
In re Reagle
In re regale when a body guard killed a man under apprehension he would shoot and kill he was arrested and charged with murdering under state law, the courts held under Article II section 3 the constitution provides executive official the power to execute laws. This includes implied powers that extends beyond acts of congress and includes rights duties and obligations F:
During an assault
against a California
judge, his bodyguard (commissioned by the Attorney General) shot
and killed his assailant. The bodyguard was
arrested and charged with murder under state law
H:
Art. II § 3 of the
Constitution provides that the President has executive power to carry out the law of the land. There is no limitation stipulating that the law be limited to treaties or acts of congress. This means that the president can issue an order to protect members of
government.
Bodyguard’s release is constitutional.
R:
The President has
express power under the Constitution to execute laws. This includes an implied power that
extends beyond acts of congress and includes the rights, duties, and
obligations growing out of the Constitution
itself, our international relations, and all the
protection implied by the nature of the
government under the Constitution.
Foriegn Affairs
The President has power to make executive agreements without advice and consent of Congress. The President alone has power to act as a representative of the country in foreign affairs. They involve the President making a pact or understanding with a foreign government. They prevail over conflicting state law, but unlike treaties, they never prevail over conflicting federal laws or the Constitution. Executive orders that are a necessary incident to the resolution of a major foreign policy dispute are constitutional in the face of Congress’ silence.
Curtiss-Wright, Dames & Moore, Garamendi.
Curtis-Writght
In Wright, when a joint resolution allowed the President to issue an order prohibiting the sale of weapons to parties engaged in conflict in Mexico, the court held that the Presidents order is constitutional because the federal government has implied powers over forigen affairs and the President alone has powers to act as a representative of the country and foreign affairs.
F:
A joint resolution from Congress allowed the President to issue an order prohibiting the sale of weapons to
parties engaged in
conflict in Chaco. This gives the President
discretion to issue
prohibition if he finds it would contribute to the reestablishment of
peace. An indictment was issued alleging that Curtiss-Wright Export Co. (defendant) illegally sold arms to Bolivia, a country engaged in the Chaco border dispute.
H:
Constitutional
The President’s order is constitutional because the federal government
has implied powers over foreign affairs and the President alone has
powers to act as a
representative of the country in foreign
affairs. Presidential power in foreign affairs doesn’t require an act of congress. The President
should enjoy freedom from statutory
restriction in handling foreign affairs because he alone has a better
opportunity to
understand “the
conditions which prevail in foreign countries.”
R:
The President alone has powers to act as a
representative of the country in foreign
affairs. Presidential
power in foreign affairs doesn’t require an act of Congress.
In matters of foreign policy, Congress does not violate the nondelegation doctrine by giving the President extremely broad
discretion over when and how to enforce a law.
Garamendi
In Garamendi, A california act required any insurers doing business in CA to disclose information about policies sold during the Holocaust. The states act conflicted with federal policy established by exectutive agreement. The courts held that state law is preem[ted by federal policies that touch on foriegn relations. Federal authority in foriegn policy preempts state policy when there is evidence of a clear conflic between the two. Conflict + weak state interest=preemption
F:
A California Act
required any insurers
doing business in CA to
disclose information
about all policies sold in
Europe during the
Holocaust. The state Act
conflicted with a federal
policy established by an
executive agreement.
H:
Unconstitutional
California’s act is
unconstitutional. The
state statute must be
stricken down because
the federal government
has primary authority in
dealing with foreign
affairs. Moreover,
Congress hadn’t spoken
on the issue and
therefore the court could
not conclude that it
disapproved of the
agreement. This case is a
continuation of Dames
& Moore because
SCOTUS enlarges the
scope of preemption.
R:
State law is preempted
by federal policies that
touch on foreign
relations. Federal
authority in foreign
policy preempts state
policy when there is
evidence of a clear
conflict between the
two. Conflict + weak
state interest =
preemption.
Allocation of War Making Authority
Article I, §8 grants Congress the power to declare war and other powers related to war such as providing for the common defense, to raise and support armies.
Article II, §2 declares the President as the commander-in-chief of the armed forces. The War Powers Resolution of 1973 limits the president’s ability to initiate or
escalate military actions abroad. It declares that except in a national emergency created by an attack on the United States, American troops may only be introduced
into hostilities pursuant to a declaration of war or other authorization from Congress. Under the WPR, the President must consult with Congress before deploying
the military, notify Congress within 48 hours of deploying the military, and terminate their use within 60 to 90 days unless Congress declares war or extends the
period. Therefore, when it comes to offensive military attacks, Congress must first declare the war in order for the President to command it. However, when it comes to
defensive military attacks, it has not been said that the President is unable to act militarily without such a war declaration. Dellums, Prize Cases Whenever federal
courts have faced this question, they have dismissed the question on political question grounds.
U.S. citizens that are identified as enemy combatants are guaranteed due process of law. The President may only convene military commissions in circumstances
granted in the Constitution and laws. Military commissions may only try offenses recognized by the laws of war as “war crimes.” Hamdi, Hamdan
Dellums v. Bush
In Bush, after Iraq invaded another country ptus raised troop levels in the area to defend Saudi Arabia. The courts held this was unconstituional because Potus needed to secure congressional aproval before making offensive attacks. The courts reasoned it was not the orginal intent of the framers to be decided by one person.
F:
After Iraq invaded
Kuwait, POTUS raised
the troop levels in the
area to defend Saudi
Arabia. Members of
Congress alleged that
any offensive military
action was unlawful in
the absence of a
declaration of war by
Congress. They sued to
prevent POTUS from
initiating an attack
without first securing
Congressional approval
H:
R:
For offensive military
attacks, Congress must
first declare the war in
order for the President
to command it. We don’t
have a SCOTUS
decision on the
allocation of war making
authority so we use
Dellums as a framework.
This case alludes to
original intent. The
framers didn’t want war
to be decided by one
person.
Prize Cases
In Prize, after four commerical vessels blocked the the courts held that the President is allowed to respond to hostility without special legislative authority but not initiate.
F:
Vessels were captured
and brought in as prizes
by public ships of the
US. The district court
pronounced a degree of
condemnation. The issue
is whether a state of war
existed at the time of
the blockade which
would justify a resort to
these means.
H:
R:
he President is allowed
to respond to hostility
without special
legislative authority but
not initiate
War Powers Resolution
The War Powers Resolution of 1973 is a congressional resolution designed to limit the U.S. president’s ability to initiate or escalate military actions abroad. It
declares that except in a national emergency created by an attack on the United States, American troops may only be introduced into hostilities pursuant to a
declaration of war or other authorization from Congress. Under the WPR, the President must consult with Congress before deploying the military, notify Congress
within 48 hours of deploying the military, and terminate their use within 60 to 90 days unless Congress declares war or extends the period.
Hamdi v. Rumsfeld
F:
Hamdi, a U.S. citizen
was captured in
Afghanistan for relief
work, was detained in
Guantanamo,
transferred to the US,
and labeled as an
“enemy combatant”
pursuant to the
Authorization for Use of Military Force Act
(AUMF). The act
authorized the
detention of individuals
in the citizen-detainee’s
circumstances during
times of war. The
Executive Branch
claimed that by
distinguishing Hamdi as
an enemy combatant,
the executive branch
had the power to keep
him in confinement
indefinitely without
formal charge
H:
R:
U.S. citizens that are
identified as enemy
combatants are
guaranteed due process
of law
Hamdan v. Rumsfeld
F:
The President created a
special military
commission to try
Hamdan, an enemy
combatant detained in
Guantanamo Bay, with
conspiracy. This
commission’s procedures
differed significantly
from the court-martial
procedures required by
the Uniform Code of
Military Justice (UCMJ)
and the Geneva
Convention. Hamdan
challenged: (1) if the
President could
unilaterally create a
military commission and
(2) if the crime of conspiracy was an
offense in terms of the
laws of warfare.
H:
R:
The President may only
convene military
commissions in
circumstances granted in
the Constitution and
laws. Military
commissions may only
try offenses recognized
by the laws of war as
“war crimes.”
DOMESTIC AFFAIRS
Absent a particularezed claim of need to protect military, diplomatic, or sensitive national security secrets, the President’s need for executive immunity in a
criminal case is less compelling. Thus, the Court will evaluate the request to compel the information and determine if the President’s generalized interest in
confidentiality is sufficient to overcome the judicial interest in the fair administration of justice. Nixon. Pursuant to the powers vested in Article II, the President is
immune from civil suits pertaining to constitutional official acts that are taken while in office. Fitzgerald. The President may be sued for unofficial acts not taken
while in office at any period of time. Clinton. Discovery orders compelling members of the executive branch to produce information for use in civil cases aren’t
permissible does not share the urgency or significance as a request to compel information in criminal cases. Cheney. Congress has the power to subpoena the
60 President’s personal records for a legislative purpose if that purpose is: (1) in furtherance of a legitimate public purpose, (2) narrow in scope, (3) specifically related
to the public purpose, and (4) does not overburden the President. The information sought was not privileged and didn’t implicate executive immunity. Mazars. The
President does not enjoy executive immunity from state criminal subpoena requests. Vance.
executive immunity
the executive has absolute immunity from civil action in suits involving the President in his official capacity. Fitzgerald. However, the
President is not immune from civil actions in suits involving the President in his unofficial capacity. Clinton v. Jones. The executive enjoys no immunity from criminal
actions.
executive privilege
the President possesses qualified privilege against compelled disclosure of presidential and other high-level executive branch
communications. US v. Nixon. Absent a particularized claim of need to protect military, diplomatic, or sensitive national security secrets, the President’s need for
executive privilege in a criminal case is less compelling. Thus, the Court will evaluate the request to compel the information and determine if the President’s
generalized interest in confidentiality is sufficient to overcome the judicial interest in the fair administration of justice. US v. Nixon
Particularized claim
Court is going to give the President complete deference. (Think: national security)
Generalized claim
: In order to carry out his function, the Court is going to evaluate the President’s claim behind closed doors taking into consideration the needs of
criminal justice
Presidential Immunity:
The President’s ability to be immune from civil liability
Nixon (Criminal Case)
F:
In the aftermath of the
Watergate scandal, the
Attorney General
subpoenaed President
Nixon to produce
evidence relating to
specific meetings in
which he was a
participant. The
President claimed that
he had an absolute
executive privilege
which granted him
immunity from
producing any
information which he
deemed to be
confidential. The defendant, a gov’t
employee, brought an
action against the
President alleging that
he had been wrongfully
discharged because he
exercised his right to
freedom of speech. The
defendant sought civil
damages from the
President after the
President’s term in
office had ended.
H:
R:
Absent a particularized
claim of need to protect
military, diplomatic, or
sensitive national
security secrets, the
President’s need for
executive immunity in a
criminal case is less
compelling. Thus, the
Court will evaluate the
request to compel the
information and
determine if the
President’s generalized
interest in
confidentiality is
sufficient to overcome
the judicial interest in
the fair administration
of justice. Pursuant to the powers
vested in Article II, the
President is immune
from civil suits
pertaining to
constitutional official
acts that are taken while
in office.
Clinton v. Jones (Criminal Case)
F:
Jones sued President
Clinton to recover
damages for unwanted
sexual advances while he
was Governor of
Arkansas. Clinton
moved to dismiss on the
grounds of presidential
immunity. The district
court dismissed the
immunity claim but
granted a postponement.
The 8th Circuit affirmed
the dismissal and
postponement.
H:
R:
The President may be
sued for unofficial acts
not taken while in office
at any period of time
Cheney (Criminal Case)
F: The D.D.C. ordered VP
Cheney to disclose
activities of the Energy Policy Task Force.
Cheney failed to comply
with the procedural and
disclosure requirements
asserting executive
privilege. He argued that
allowing broad
discovery into
confidential
communications of the
President’s closest
advisors would impinge
upon the autonomy of
the executive branch.
H:
R: Discovery orders
compelling members of
the executive branch to produce information for
use in civil cases aren’t
permissible does not
share the urgency or
significance as a request
to compel information
in criminal cases.
