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1

Locke on the Executive

1) Need for an independent executive:
a) procedural - leg not always in session
- law always needs to be enforced
b) substantive
- external checks to prevent self law
-separate executive, independent will
2) foreign policy power
-not just leg bc
a) nature of law: general, prospective
- fp is prudence, not law, cannot foresee all posiibilities
b) Leg process is too slow
- exec can respond immediately
c) dangerous to divide physical power
- clash between internal and external forces (police vs milit)

2

Executive prerogative (Locke)

1) ability of exec to act outside of the law
- act in absence of the law (where law has not yet been made)
- act against written law = emergency power
2) Justification
- leg process too slow
- leg not always able to act
-limits of law
- law is prospective and general
- rigid application is harmful
- exceptions must be made
3) most dangerous in hands of effective leader

3

Unitary Executive Theory

1) Federalist 70 - Hamilton
2) govt needs strong exec
3) divided exec = weak
- undermines exec maybe govt
4) benefits of Unitary Exec
- speed
-decisiveness
- secrecy

4

Pacificus- Helvidius Debates (Pacificus)

1) background : (1793) neutrality proclamation of Washington in war bt France and England
2) pacificus = Hamilton
- prez controls fp
- limits = explicit grants to Congress
- power to declare war
- power to confirm treaties
3) Vestment Clause (2.1) is a broad grant of power
- enumerations = clarification of implicit grant
- only limited by explicit exceptions (confirm treaties, declare war)

5

Pacificus - Helvidius Debates (Helvidius)

1) helvidius = Madison
2) fp belongs to legislative -- war and peace = highst acts of sov
3) treaties, declaration of war fall between realm of law = Congress domain
4) Presidential Power is very Limited
- enforce laws made by COngress

6

Korematsu v US

1) background 1944 fear of invasion
- FDR executive Order #9066
military establish exclusion zones
internment camps
2) Constitutional Q: violate equal protection? unconstitutional racial discrimination?
3) Frankfurter (Concurrence)
- peacetime vs wartime constitution (govt expanisve)
- court not deciding, electorate must
4) Black (Majority)
- strict scrutiny test
- racial classification highly suspect
- indiv right vs societal need (narrowly tailored)
- defer to military Judgement
war = dire emergency, outbalances normal conitions
- not racial prejeduice
- milit situation, congress sponsored, only war zone
5) Murphy - Dissent
- no concrete evidence
- no serious argument re: race
-no rational argument --> fails rational basis test (rational basis with bite)
6) Jackson - dissent
= war matter, not judiciable
- pol q: exec prerogative is beyond law
if court forced to decide, must say unconst.
role of court toprotect the const

7

Youngstown Sheet & Tube v. Sawyer

1) Background: Korean War/police action
-1952 steel workers strike
- Truman executive order: seize steel mills, maintain production
-commander in chief, inherent powers, war effort
2) Constitutional Question: Can president unilaterally seize property? Do prez war powers extend to domestic production?
3) Black (majority)
a) prez req explicit power
-either congress or the constitution
b) lacks const mandate
-commander in chief in theater of war onlu
-take care clause? don't break laws..
c) Lacks statutory authorization
- Taft-Harley Act: denied presidential power
4) Jackson (Concurrence)
rejects doctrinaire textualism (prez has implicit powers bu they are limited)
TRIPARTITE FRAMEWORK
prez + congress = strongest
pres - congress = twilight zone
prez vs congress = weakest
TRuman = 3rd cat

8

War Powers Resolution

1) in light of nam, designed to check the presidents authority in armed conflict
2) president must meet with congress before introducing troops to where military confrontation is eminent
3) needs congressional approval after 60 days of conflict
4) generally opposed by oresidents as infringement
5) interpreted by district courts as a political question

9

Authorization of the Use of Military Force (AUMF)

/1) gives president power to use all nec forces against nations, groups, indivs involved in 9/11
2) Guantanamo prisoners --> enhanced interrogation
3) SCOTUS prez full power to detain, but split about denying legal rights, can deny some legal rights?

10

Marbury v Madison

1) Background: 1803 (E19) "midnight appointments" Marbury seeks appointment in writ of mandamus asfter rejection of appt by madison
2) Constitutional Questions
Violation of legal rights of Marbury?-- yes commission granted, has right to legal redress
Does SCOTUS have power to grant redress? -- no Judiciary act is unconstitutional, Conggress cannot extend authority of the court
3) Precedent -- JUDICIAL REVIEW -- ability to strike down laws
4) Escapes dilemma, grants Jefferson small victory

11

Baker v Carr

1) Background: 1962 (L 20) gross jerrymandering from rural to urban areas on state and national level
2) Constitutional Questions
a) Violation of guarantee clause (rep form of govt)?
b) Violation of Equal Protection Clause (14th Amendment)
c) Is there a judicial remedy?
3) Decision
a) guarantee clause = politcal
b) equal protection clause = judiciable, establsihed via case law
c) Reverse jerrymandering, remand lower courts to address with standard of one person one vote
3) Frankfurter's Concerns
- no fixed standard, court decide philisophical dispute
- judicial authority req. neutrality
- practical concerns: to overturn impacts every state
- see court as sole portector of rights
4) Brennan's Political Question Doctrine -- textual guidance, clear objective standard, prudential

12

Brennan's Political Question Test

Baker v Carr
1) Textual guidance
- textually demonstrable constitutional commitment to coordinate pol department
2) Clear, Objective Standards
- lack of judicial standards
- impossible to decide without determining initial policy of a non-judicial discretion
3) Prudential
- No independent resolution without disrespecting other branches
- unusual need for unconstitutional adherence to pol decision already made
- embarassment of court due to lack of enforcement
4) Application to Luther v Borden
-SCOTUS make ruling? not political question?

13

Morrison v Olsen

1) 1988 - Ethics in government Act 1978
- allows fro creation of independent counsel
- selected by judicial panel
- removal subject to review
2) Constitutional Question: Does creation of independent counsel infringe on executive privilege?
3) Majority: Rhenquist
- Appointment's Clause (Art. II. 2. 2)
Distinguish bt principal and inferior officer
Ind counsel = inferior officer (tem0 and spec)
- Pragmatic Concerns
Congress does this to address conflicts of interest between executive
4) Dissent: Scalia
a)in no way inferior officer
- full prosecutor power with no superior
b) violates "unitary executive"
- vestment clause Art. 2. 1
c) Practical Danger: run amok, witch hunt
- could undermine all executive actions
d) use existing checks instead
- impeachment
- elections
- cut budget, etc.

14

INS v Chadha (1983)

1) background: Immigration and Nationality Act
- attn. general discretion for deportation
- Congress review exemptions
- Chadha denied exemption
2) Const Q: legislatice veto infringe on executive authority?
3) Dissent (White)
- leg veto keeps exec in check
- otherwise too much authority, preserves sep of powers
4) Majority - Burger
- veto violates legislative rules
- art 1 bicameralism, presentment
Alternative objections
- judicial role: focus on single case
- executive role: counter AG's discretion

15

Nixon v Fitzgerald (1982)

1) Background: Fitzgerald fired by Nixon.. for whistle blowing? Alleges Nixon vendetta, sues for damages
2) Constitutional Q: is president immune from civil litigation?
3) Majority Opinion: Powell
Absolute immunity for official actions
worry:
- undermine executive decisions
-undermine govt (prez = central role)
- if civil immunity abused use political check!
Dissent (White)
1) Reject absolute immunity
- consider spec action, whether central to office, whether actor should know = illegal
2) Role of Court = protect individual rights

16

Presidential Pardon Power

1) can pardon large groups (thousands)
2) pardon before and after trial
3) negates trial or restores full legal status

17

Executive Privilege

1) secrecy, deny information to citizens, other branches
2) Justification: planning, consultation, deliberation
3) Limits?
4) Nixon v US (limit: subject to criminal investigation) Cheney v US (application not subject to civil suits)
5) needs strong indication / likelihood
6) primary investigation outside the courts

18

US v. Nixon (1974)

1) Nixon recorded phone calls -- in light of Watergate, impeachment process
2) Const Q: is presidential exec priv entirely immune from judicial review
3) Nixon Defense:
- intra branch dispute
- other branches cannot invade exec
4) 8- 0 ruling : turn over tapes (Rehnquist)
- grants weight of exec priv (strongest when actual sec concerns)
- counter: role of judiciary -- due process, criminal investigation
- Prez is not above the law

19

Cheney v US

1) Background: energy advisory committee, dick cheney = chair, lobbyisy, energy reps
2) sued for civil discovery by FACA
3) Cheney Defense:
- infringes on exec priv
-"vexatious litigation" undermine exec
4) 7-2 Ruling: exempt Cheney
- distinguish criminal vs civil suits
-civil suits have fewer limits
- inc burden on exec
-reason to suspect abuse of discretion

20

Impeachment

II.4 --> treason bribery, high crimes, misdemeanors
1) procedure
-charges introduced in house: majority
-judgement by senate: 2/3 majority
2) penalty = removal from office
2) Johnson
- opposed congress leg agenda
- did not carry out reconstruction laws

21

Walter Nixon v. US

1) senate has full impeachment power
2) SCOTUS sees impeachment as political wuestion
-explicitly granted to congress

22

Zivotofsky v Kerry

1) Background: Foreign Relations Authorization Act
- pressure Bush Jerusalem = part of Israel
- listed on passports
-Bush advisory signing statement
-Zivotofsky sues
2) const q: Does FRAA infringe on presidents foreign policy power?
3) Majority: kennedy --> prez implied recognition power
- text: Reception Clause (II.3)
- inference: prez rec ambassador
- inference: treaties, envoys
- functional: one voice in fp
EXCLUSIVE Presidential Power
- congress cannot counteract
- use other powers = budget, appointment, treaty confirmation
4) Dissent: Scalia
Congress has a role in fp
- exercise broad powers
- passport: naturalization (1.8.4) + foregin commerce (1.8.3)
- rejects fundamentalist arg: govt must speak with one voice??

23

Zivotofsky v Clinton

1) not a political question
2) courts have right to rule whether a statute directing the secretary of state to register passports in a manner is const or not