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Flashcards in Executive Deck (38)
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What is contained in Article II, (Section 1)of the Constitution?

- Power vested in President
- Term limit of 4 years
- The limits of what makes you eligible to be elected or appointed.


Article II Section 2?

- President is commander in chief of Army and Navy
- Power to make treaties under consent of Senate


Article II Section 3?

- President may call upon Congress at any time


Article II Section 4?

- President may be impeached
- Vice president and civil officers can be impeached as well


Why were the Framers of the Constitution uncertain about how to create a chief executive?

- Did not want to centralize too much power to one branch and return to a dictator style of government.


What is the sole organ theory?

Written into constitution
- Proposed by John Marshall
- President is Sole representative during foreign affairs and external relations.


How did the Court write the sole organ theory into constitutional law in U. S. v. Curtiss-Wright Export (1936)?

Case – Wright was selling weapons to Bolivia during Paraguay and Bolivia war, congress wanted to prohibit sales to either country.
- Question: Can congress delegate lawmaking to president without violation of Separation of power?
(7-1 YES)
- Congress can only delegate authority to president for decision.


What did the Court decide in Youngstown Sheet and Tube v. Sawyer (1952)?

Case- Strike by United Steelworkers union to close down, President Truman ordered executive order to Charles Sawyer to seize nation steel mills and keep them in operation.
-Question: Does the president have the authority to seize and operate nation steel mills?
(6-3 NO)
- The Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property.


What is Justice Jackson’s continuum of presidential power?

- If congress authorizes the action through legislation, the President has the power and the burden is on others to prove the president doesn't have the power.
- If congress is silent, it is uncertain and a twilight zone situation where there is a lack of clarity about presidential power.
- If congress passes a law to deny the president authority, the burden is on the president to justify the use of power.


What did the Court decide in The Prize Cases (1863)?

Case- Lincoln wanted to seize all property coming into south (weapons, ammunition, supplies) Seize ships due to war existing.
- Question: Did Lincoln act within his presidential powers defined by Article II when he ordered the seizures absent a declaration of war?
(5-4 No)
- Neither Congress nor the President can declare war against a state of the Union, when states waged war against the United States government. Congress must declare war first and then the president can.


In Ex parte Milligan (1866), should Milligan have been tried by a military commission? Why or why not?

Case Brief- Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War; he had engaged in acts of disloyalty. Milligan sought release through habeas corpus from a federal court.
- Question: Does a civil court have jurisdiction over a military tribunal?
(9-0 no)
- David Davis, speaking for the Court, held that trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating.


3. Scholars have written that the war making power is a shared power between Congress and the President. Relying upon Articles I and II, the War Powers Act (1973), and relevant case law, does Congress have the power to prevent a President from starting a war in the future if the public opposes such action? Why or why not?

Congress does have the power to prevent a president from declaring war because of the 60 day limit for congress to approve of Presidents declaration of war. 60 day limit to use military also, within 48 hours, president must respond to congress with what will happen. Public and congress can stop war during 60 days.


What did the Court decide in Ex parte Quirin (1942)?

- Case Brief- 8 Germen men travelled to Long Island NY by submarine with plans to sabotage certain US targets. Burger and Dasch backed out of the mission. Dasch turned himself in to the Federal Bureau of Investigations. All eight conspirators were subsequently arrested and, on the orders of President Franklin Roosevelt, tried by military commission. All 8 men sentenced to death. Fifth and Sixth Amendments to the Constitution protect their rights to a regular trial, seven of the eight conspirators, not including Dasch, filed petitions for a writ of habeas corpus in Federal District Court. Claims were denied.

- Question : Did the President exceed his authority in ordering a trial by military commission for the German saboteurs, thereby violating their rights under the Fifth and Sixth Amendments?

- NO. In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants. The rights of the conspirators were not violated.


What did the Court decide in Korematsu v. U. S. (1944)?

- Case Brief - During World War II, Presidential Executive Order 9066 and congressional statutes gave the military authority to exclude citizens of Japanese ancestry from areas deemed critical to national defense and potentially vulnerable to espionage. Korematsu remained in San Leandro, California and violated Civilian Exclusion Order No. 34 of the U.S. Army
- Question: Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent?
(6 votes for United States, 3 votes against)
- The Court sided with the government and held that the need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril


In Hamdi v. Rumsfeld (2004), what did the Court rule regarding presidential power and Hamdi’s due process rights? Discuss the legal reasoning behind the decision. Do you agree or disagree? Why or why not?

Case Brief- Yaser Hamdi, an American citizen, was arrested by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant. Father argued that Hamdi’s detention was unconstitutional and that the government violated Hamdi’s 5Th amendment and access to attorney or a trial. Government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system.
- Question:
1. Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States?
2. Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?
(6 for Hamdi, 3 against)
- Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decision maker. Justice Ruth Bader Ginsburg concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Violates international law and uniform code of military justice.


In Hamdan v. Rumsfeld (2006), what did the Supreme Court decide about the military commissions used by the Bush administration? Do you agree with the decision? Why or why not?

Case Brief – Salim Hamdan (Bin Landen Chauffeur) imprisoned by US Military. He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated him an enemy combatant. The district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. Circuit court reversed the decision finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional.
- Question:
1. May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions?
2. Was the military commission established to try Hamdan and others for alleged war crimes in the War on Terror authorized by the Congress or the inherent powers of the President?
(5 votes for Hamdan, 3 votes against)
- Held that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed classified by the military commission violated both of these, and the trial was therefore illegal.


What is the line item veto?

Allows chief executive to reject particular provisions of a bill enacted by a legislature without vetoing entire bill.


What did the Court decide in Myers v. United States (1926)?

Case Brief- An 1876 law provided that postmasters of the first, second and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate. President Woodrow Wilson removed Myers, a postmaster first class, without seeking Senate approval.
- Question: did the act unconstitutionally restrict the president’s power to remove appointed officials?
- Yes, Chief Justice Taft concluded that the power to remove appointed officers is vested in the President alone. According to Taft, to deny the President that power would not allow him to "discharge his own constitutional duty of seeing that the laws be faithfully executed."


What did the Court decide in Humphrey's Executor v. United States (1935)?

- Case brief- President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office.
- Question: Did section 1 of the Federal Trade Commission Act unconstitutionally interferes with the executive power of the President?
(9 votes for Humphrey, 0 against)
- The FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president.


What did the U. S. Supreme Court decide in Clinton v. NYC (1997)? Why?

- Case Brief-
1. City of New York, two hospital associations, a hospital, and two health care unions, challenged the President's cancellation of a provision in the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly $2.6 billion in taxes levied against Medicaid providers by the State of New York.
2. In the second, the Snake River farmer's cooperative and one of its individual members challenged the President's cancellation of a provision of the Taxpayer Relief Act of 1997.
- Question: Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I?
(6 for NYC, 3 against)
- Court decided that NY and its affiliates suffered sufficiently immediate and concrete injuries to sustain their standing to challenge the President's actions. The Court then explained that under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved or rejected by the President.


What is executive privilege? Explain Chief Justice Burger’s unanimous opinion in U. S. v. Nixon (1974).

Case Brief- 7 of Nixons closest aids in the Watergate affair, the special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest
- Question: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?
(8 votes for United States, 0 against)
- The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents/


What was the Watergate scandal and who were the “plumbers”?

Covert white house special investigations unit during Nixon presidency. Task was to stop classified information from getting out. Branched into illegal activities during reelection of Nixon most importantly Watergate.


What did the Court decide in Clinton v. Jones (1997)?

- Case Brief- Jones states she was sexually harassed by Clinton and filed a suit. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her state supervisors. Clinton then tried to use his immunity and dismiss the Jones suit against him. While the District Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency.
- Question: Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?
- (9 votes for Jones, 0 against)
- The Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. The court also held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process


What did the Court decide in Ex parte Grossman (1925)?

Case brief- Philip Grossman for selling liquor at his place of business in violation of the National Prohibition Act. He violated a federal court injunction by continuing to sell alcoholic beverages.
- Question: Did the president have the constitutional authority to commute a sentence for criminal contempt of court?
- Unanimous decision, the Court found that a presidential pardon for a criminal contempt of court sentence was within the powers of the executive.


What did the Court decide in Murphy v. Ford (1975)?

Case Brief- President Ford granted former President Nixon a pardon for alleged misconduct while in office, despite that fact that legal proceedings had not commenced.
- Question: May a President grant a pardon in the interest of domestic tranquility, even though the recipient has not been subjected to legal proceedings
- The President has unlimited pardoning power that may be exercised at any time before, during, or after legal proceedings. A pardon is appropriately granted when offered to rebellious parties to restore national tranquility.


What is the legislative veto?

Power of a legislature or one house of a bicameral legislature, to nullify an action of executive authority.


What did the Court decide in INS v. Chadha (1983)?

Case Brief- Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General. Chadha had stayed in the U.S. past his visa deadline. Chadha conceded that he was deportable, an immigration judge suspended his deportation. The House of Representatives voted without debate or recorded vote to deport Chadha.
- Question: Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine?
(7 votes for Chadha, 2 against)
- The Court held that the particular section of the Act in question did violate the Constitution. Even though the Act would have enhanced governmental efficiency, it violated the "explicit constitutional standards" regarding lawmaking and congressional authority.


What are the sources of presidential power? (i.e. Article II powers and implicit powers -Neustadt and case law)
Article 2-

• serve as commander in chief of the armed forces
• appoint heads of the executive departments, ambassadors, Supreme Court justices, people to fill vacancies that occur during the recess of the Senate, and other positions
• pardon crimes, except in cases of impeachment
• enter into treaties, with two-thirds consent of the Senate
• give the State of the Union address to Congress
• convene the Congress
• receive ambassadors of other nations
• commission all officers of the United States
• Neustadt-
- Power to persuade and bargain to influence policy.
- Influence executive branch, cabinet secretaries, agencies and individual bureaucrats.


According to Wildavsky, why are Presidents more successful in foreign affairs as opposed to domestic affairs?

Can use executive agreements rather than treaties
- Better ability to obtain information on developments through departments of state and defense
- have superior resources compared to the weak or divided opponen


What is the Solicitor General?

is the person appointed to represent the federal government of the United States before the Supreme Court of the United States.