Final Exam Flashcards
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)
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
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
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)
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
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
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
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
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?
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
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
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?
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.
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
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
