Chapter 3 My Notes From Books

8/13/2019 Chapter 3 My Notes From Books

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Chapter 3 The Federal Executive Power

Examines 5 topics:

1. Inherent presidential power

2. The Authority of Conress to Increase Executi!e "ower

#. The Constitutional "ro$lems of the Administrati!e %tate&. %eparation of "owers and 'orein "olicy

5. Chec(s on the "resident

I. Inherent Presidential Power

Art. II) %ec. 1 *+The executi!e "ower shall $e !ested in a "resident of the ,%A.+ Then

it enumerates specific powers of the president.

Arument o!er whether this lanuae was intended togrant the president inherent

powers not expressly enumerated in Art. II.

When may Pres. act when hes not authorized by Const. or state?

o Called inherent power of the president

o As if Pres. is acting within scope of his power and if hes !iolating any other

section of the Constitution5 roles

Youngstown Sheet and Tube Co. v. Sawyer "secretary of commerce# $

Issue: no express power of what president did!

1-52) The ,nited %teelwor(ers ,nion announced a planned nationwide stri(e $ecause of a

la$ormanaement dispute. /efore the stri(e $ean) "res. 0arry Truman issued Executi!e rder 1#& which directed

the %ecretary of Commerce to sei3e the steel mills and (eep them runnin 4under no

statute.

The president) as commander in chief) rationali3ed his order claimin that if steel wasn6t

produced) then it would endaner the national defense and the war in 7orea since steel was

used to ma(e all weapons.

o Article II Section % &he President shall be Commander in Chief of the Army and

'a!y of the (nited )tates* and of the +ilitia of the se!eral )tates* when called intothe actual )er!ice of the (nited )tates

The order was reported to Conress) $ut Conress too( no action. The steel companies

sued. 0eld: %ei3ure of steel mills is unconstitutional $y 8 to # marin $ecause president cannot do

this as commanderinchief and pres. is 9T a lawma(er for Conress

Pres. can seize pri!ate property when theres a war* but no declaration of war* so this is the

I))(,-

)hould it issue an inunction pre!enting the president of the u.s. from seizing pri!ate

property?


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/ theories0. &heory strict construction of the constitution.1. exeuti

Four different approaches can be identified in the 7 opinions written:

1. I!!IC"There is no inherent presidential power the president may act only if there

is express constitutional or statutory authority 4"res. may only issue order if it stemsfrom either an act of Conress or from the Constitution itself. ;ority opinion for the Court. ;#rants the pres. onl$ the powers found

in Const.2. I!!IC" The president has inherent authorit$ unless the president interferes

with the functionin% of another branch of %overn&ent or usurps the powers of

another branch. 4=ustice ?oulas said the sei3ure was unconstitutional $ecause the

pres. was forcin the expenditure of federal funds therefore) the pres. was usurpinConress6s spendin powers. ;'llows the courts to invalidate presidential actions

that interfere with the other branches of %overn&ent.

3. ((I!!IC" The president &a$ exercise powers not &entioned in the Constitution

so lon% as the president does not violate a statute or the Constitution. )*ustice*ac+son devl,d a 3 part test:

President,s acts are valid when he acts pursuant to an express or

i&plied authori-ation of Con%ress. &axi&u& extent of power/

0hen the President acts in absence of either a con%ressional %rant or

denial of authorit$1 he can onl$ rel$ upon his own independent

powers1 but there is a -one of twili%ht in which he and Con%ress &a$have concurrent authorit$1 or in which its distribution is uncertain.

)Issues such as executive privile%e1 i&pound&ent1 rescission of

treaties1 executive a%ree&ents1 re&oval of executive officials fro&office1 etc.2 concurrent authorit$ -one /

0hen the Pres. ta+es &easures inco&patible with the expressed ori&plied will of Con%ress1 his power is at its lowest ebb because the

president is disobe$in% a federal law1 such actions b$ the pres. will beallowed onl$ if the law enacted b$ Con%ress is constitutional. @lowest

e$$ 3one #

(4ees it as Con%ress,s responsibilit$ to act to stop presidential infrin%e&ents.&. The president has inherent powers that may not $e restricted $y Conress and may act

unless the Constitution is !iolated. 4'ederal laws restrictin the pres.6s power are

unconstitutional B 56'! authorit$ so lon% as the Constitution is not violated

even if it defies Con%ress. )e.%.1 in 8war on terror19 acts can be done do&esticall$2.

The president needs authority to sei3e property.

Executive Privile%e refers to the a$ility of the "resident to (eep secret con!ersations with or

memoranda to or from ad!isors $ut the Constitution does 9T mention this authority) $ut 0A%$een reconi3ed. @inherent power/

"residents claim that this is necessary to recei!e candid ad!ice as well as to protect national

security.


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This was considered in (.). !. 'ixon "1-& B

o =une 1) 1-2 B $urlary at ?emocratic 9ational 0eadDuarters in the ustice

chares) $ut not 9ixon. Another su$poena 4su$poena duces tecum was issued forthe tapes 4for one of the criminal cases of one of his associates. 9ixon6s motion to

sDuash the su$poena on rounds of executi!e pri!ilee and separation of powers wasdenied.

o Impeachment proceedins $ean while the'ixon case was pendin $efore the

%upreme Court) which ruled unanimously that 9ixon has to comply with thesu$poena and produce the tapes.

o Au. 8) 1-& B 9ixon made edited tapes pu$lic and showed the he clearly had

o$structed >ustice $y orderin the '/I to 9T in!estiate the


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II. The 'uthorit$ of Con%ress to Increase Executive Power

F>I Con%ress can1 b$ two?thirds vote1 override the president,s veto of a bill.

Clinton "pres.# !. City of 'ew 2orB 4'ederal deficit was a hue issue hereo

The ine Item Keto Act $ecame effecti!e in 1-- which a!e the pres. authority to !eto 4orcancel particular parts of an appropriation $ills while allowin the rest to o into effect.

o Ji!es "res. authority to cancel # types of pro!isions that ha!e $een sined into law:

any dollar amount of discretionary $udet authority

any item of new direct spendin

any limited tax $enefit

o 2 separate actions aainst the "res.

1. City of 9ew Lor() 2 hospital associations) 1 hospital) and 2 unions that represent

health care employees 4In!ol!es an item of new direct spendin+

2. 'armers6 cooperati!e consistin of a$out # potato rowers in Idaho and an

indi!idual farmer. 4In!ol!es a limited tax $enefit+

It was a reDuirement that the city of new yor( return money

;I44@E:Fay Conress rant the "res. the authority to cancel portions of leislation after it has$een enactedM


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"resident6s arument was that $Oc of spendin and authority.

III. The Constitutional Proble&s of the 'd&inistrative 4tate

o

Interstate Commerce Commission was created in 1PP * it created federal administrati!eaencies with $road powers 4example: 'ood and ?ru Administration) En!ironmental"rotection Aency) the %ecurities and Exchane Commission) etc.

o These aencies enerally ha!e leislati!e) executi!e) and >udicial power) $ut this can $e

trou$lin for one aency to ha!e all three powers.

9on deleation doctrineQprinciple that Conress may not deleate its leislati!e

power to administrati!e aencies.

A3A )chechter poultry Corp. !. () 441-#5 p. 252

o 'ACT%:

o ,nder the 9ational Industrial Heco!ery Act) Conress a!e the "resident authority

to appro!e and implement as law codes that were suested $y trade or industrial

roups.

o ne code that was implemented B the Code of 'air Competition for the i!e "oultry

Industry 4Implemented $ecause of the terri$le economy B prescri$ed la$or and

operational standards for poultry $usinesses in and around 9ew Lor( City. R was

con!icted for conspiracies and !iolations of the code.

o 0E?: Conress may not deleate unrestrained law ma(in authority to the

"resident.

o A9AL%I%: The law is too $road and i!es the "res. too much discretion to decide

what laws to enact. 4In!alidates this $ecause of the nondeleation doctrine.

o ule of ;aw: Con%ress &a$


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Codes must not promote monopolies or $e oppressi!e to small enterprises

o Panama 5efining Co. !. 5yan41-#5 p. 25# *

o 'ACT%:Conress enacted a pro!ision in the 9ational Industrial Heco!ery Act thata!e "resident power to prohi$it the transportation of petroleum products in excessof the amount allowed $y state law. And the "resident did so issuin an executi!e

order.

o I%%,E: Fay Conress authori3e the "resident unrestricted lawma(in authorityM

o 0oldin: 9N

o A9AL%I%: Conress simply left this matter to the "resident and if left alone)

Conress could deleate authority to the "resident for anythin. The "resident had

no rules B didn6t ha!e to ma(e any factual findins $efore issuin the prohi$ition.This deleation of authority was unlawful.

o ule of ;aw: It is a violation of the separation of powers for Con%ress to

dele%ate law?&a+in% authorit$ to the Pres. without i&posin% standards or rules

li&itin% that authorit$ Con%ressional dele%ation of power to the executivebranch &ust be specific and li&itedA

Conress can deleate leislati!e power to other $ranches $ut there must $e standardsset. HI??IC7

o Whitman !. American &rucing Assn.* Inc

PROCEDURAL POSTURE: Several cases arose when the Environmental Protection Agency(EPA) revised national ambient air quality standards (NAAQS) for particulate matter and

oone! "he petition for writ of certiorari to the #istrict of $olumbia $ircuit was granted% to

address the issues of whether EPA could consider costs in setting NAAQS% and whether itsinterpretation of the $lean Air Act ($AA) relating to implementation of revised oone NAAQS

was permissible!

o

OVERVIEW: "he court found that & '(b)(') of the $AA% which required the EPA to set air

quality standards at a level to protect the public health with an adequate margin of safety%fit comfortably within the scope of discretion permitted by its precedent! Also% the court

affirmed the court of appeal*s holding that & '(b) of the $AA unambiguously barred costconsiderations from the NAAQS+setting process! ,urther% the court found that the court ofappeals had -urisdiction to review the EPA*s interpretation of the part of the $AA relating to

the implementation of the revised oone NAAQS% since its implementation policy was a finalagency action that was ripe for review! .owever% the court remanded the action% since it

held that the EPA*s implementation policy for nonattainment areas was unlawful! /hatevereffect could be accorded gaps in the section addressing oone specifically (subpart 0)% as

implying some limited applicability of the section containing general nonattainmentregulations that pertained to every pollutant% they could not be thought to render subpart


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0*s carefully designed restrictions on EPA discretion utterly nugatory once a new standard

had been promulgated!

OUTCOME: "he $AA properly delegated legislative power to the EPA% but the EPA could not

consider implementation costs in setting primary and secondary NAAQS! Also% the court ofappeals had -urisdiction to review the EPA*s interpretation of the part of the $AA relating to

the implementation of the revised oone NAAQS1 however% the EPA*s interpretation of thatpart was unreasonable!

Issue:


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o Also) the act does not !iolate the separation of powers principle $ecause the sentencin

of criminals has 9EKEH $een the exclusi!e role of only one $ranch of o!ernment

o ule of ;aw: Con%ress is ude ordered Chadha and the others deported.

I9% areed with Chadha that the 0ouse action was unconstitutional. The Court of Appeals)

9inth Circuit recei!ed !ast support in the form of amicus curiae $riefs from $oth the %enateand the 0ouse) and the Court areed that the 0ouse action was unconstitutional. This Court

affirms. @the resolution was not treated as a leislati!e act as per W2&&4c42.

I44@E:Is the onehouse leislati!e !eto+ unconstitutional) e!en when authori3ed $y a properly

enacted statuteM


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6;!I4I4:

After oin throuh a lot of oriinalist context as to the 'ramersU intent to create three$ranches of o!ernment) and that the three $ranches were there in part to chec( on one

another to preser!e the sanctity of the powers) and the people. This was a leislati!e act in

nature. This act also) in a sense) o!erruled the Attorney Jeneral and mandated ChadhaUsdeportation.

Conress actually deleated the authority it su$seDuently too( away to the executi!e

$ranch) specifically the Attorney Jeneral) of the authority to allow deporta$le aliens to

remain the ,% should their case fit the hardship uidelines. %ince Conress deleated suchauthority) the deleation of powers doctrine mandates that the action must $e passed

throuh $oth houses of Conress and then presented to the "resident as per Article 1) W of

the Constitution. Conress must a$ide $y that deleation unless it is leislati!ely altered or

re!o(ed. There are only four provisions set forth in the Constitution in which only one house of

Congress would have to act:

o 2. initiating i$peach$ents

o . Senate power to conduct i$peach$ent trials

o 3. Senate power to confir$ presidential appoint$ents and

o 4. Senate5s power to ratify treaties.

This further supports the notion that what the leislatureUs action was indeed was not an implied

power. Conress cannot et around the slowness and tediousness of o!ernment) as this is what the'ramers intended.

ule of ;aw:9ondeleation doctrine: mandates that the action must $e passed throuh $othhouses of Conress and then presented to the "resident as per Article 1) W of the Constitution.

Conress must a$ide $y that deleation unless it is leislati!ely altered or re!o(ed. 0ih court:

;e%islative action is not le%iti&ate unless there is bica&eral approval and present&ent to

the President the le%islative veto is unconstitutional. The legislature too' over thead$inistrating of law 6usurping the ex. branch7.

I&portant !icta: The intent of the 'ramers in writin the Constitution was to pro!ide ao!ernment which would satisfy $oth the lare and small states) which is why there are two

houses 4Jreat Compromise. These two houses chec( on one another) and the executi!e

chec(s on them) and the >udiciary chec(s on $oth) with Conress chec(in on the >udiciary.

Anythin else is unconstitutional.

!issentin%: 4=ustice


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/icameral reDuirement B the const. di!ides the leislati!e $ranch into 2 houses) each of which

must appro!e of all leislati!e acts 4with & limited exceptions $y a ma>ority !ote $efore the

leislation can $ecome law.

"resentment reDuirement B the Constitution reDuires that all leislation) after passin $oth houses

of Conress) $e presented to the "resident $efore it may $ecome law.

,nicameral B an action ta(en $y one house of Conress 4$y 0ouse of Hepresentati!es or %enate

wOo action $y the other house

Chec+in% 'd&inistrative Power:

o Conress can control administrati!e aencies throuh statutes B to perform certain tas(s or

deny them authority in certain areas.

o It can o!erturn aency decisions $y statutes) followin the prescri$ed procedures for

$icameralism and presentment. The "res. can !eto these statutes) $ut Conress can o!erride

this $y twothirds !ote of Conress.o Conress also controls the $udet of these aencies and can use this to chec( its wor(. The

committees that o!ersee the aencies monitor and control the aencies actions.

o Appointment and remo!al power B "res. has authority to select mem$ers of aencies)

su$>ect to confirmation $y the %enate. The "res. also has the power to remo!e aency

officials.

'ppoint&ent Power* a.(.a. Appointments Clause+ Art. II W2 B the "resident shall nominate)and $y and with the Ad!ice and Consent of the %enate) shall appoint Am$assadors) other pu$lic

Finisters and Consuls) =udes of the %upreme Court) and all other fficers of the ,nited %tates)

whose Appointments are not herein otherwise pro!ided for) and which shall $e esta$lished $y aw:

$ut the Conress may $y aw !est the Appointment of such inferior fficers) as they thin( proper)in the "resident alone) to the Courts of aw) or in the 0eads of ?epartments.+ B The issue here is

whomay possess the appointment power.

Alexia +orrison* Independent Counsel !. 9lson "subpoenaed witness# 441-PP p. 28P'ACT%:

o


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in!estiation is complete. Also) counsel is su$>ect to the o!ersiht of Conress and may

ha!e to su$mit reports or statements of his acti!ities.

o I%%,E: ?oes the Constitution reDuire that the "resident exercise sole and exclusi!e control

o!er the appointment of all executi!e officersM And whether appellant is inferior+ orprincipal+ officer $ecause if she is principal) then the act !iolates the Appointments clauseM

Inferior.


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o Impeachment of "resident Andrew =ohnson when he fired the %ecretary of ust so that he could nominate who he wanted. 0E?: Pres. had no powerto re&ove b$ the Constitution and no power is %iven to hi& b$ statute =ust because

Con%ress said nothin% about it. &hey were adudicating claims; ? 'o* since this was a fixed term of commission.

5egulatory commissions $ ederal &rade commission* CC* etc.* created and sometimesreferred to the @th branch of the go!ernment.


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o owsher !. )ynar $ I%%,E: ect to >udicial re!iew. 0E?: the

limitation of remo!al does 9T depri!e the "resident of control o!er the independentcounsel to his >o$. Can remo!e for good cause.

o T0E CA%E% A/KE: %eem to esta$lish that the "resident may fire any executi!e official.

/ut Conress can limit remo!al $y statute if $oth) it is an office where independence from

the "res. is desira$le and the statute does not prohi$it remo!al) $ut limits it to where there isood cause.

IB. 4eparation of Powers and Forei%n Polic$ the Constitution says !ery little a$out foreinpolicy decision ma(in. Conress has the power to declare war) $ut the "resident is the

CommanderinChief. Art. II also i!es the "resident power) $y and wO the ad!ice and consent of

the %enate) to ma(e Treaties) pro!ided twothirds of the %enators present concur)+


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o 0?I9J: LE% $ecause it is a forein affairs issue 4and not a domestic affair issue. If it

was a domestic affair) then no $ecause it6s su$>ect to the enumerated powers. %ince the

"resident is the representati!e in forein affairs) then he has discretion to ma(e these

decisions. 0e is $est to ma(e this decision since he has confidential sources 4such as spiesand forein affairs officers.

o ule of ;aw: The non?dele%ation doctrine does not bar Con%ress fro& dele%atin%%reat authorit$ and discretion to the President in the conduct of forei%n affairs The

president has broad authorit$ to conduct forei%n affairs. This is a $a=or current issue

due to the (war on terroris$.) So there is >1,A? power in foreign affairs.

o 2I% &here is currently an executi!e order to limit tra!el to Cuba.

o Youngstown case$ was shut down by executi!e order and it had to ha!e expressed order

because its a domestic affair "internal#* but here he did '9& ha!e to ha!e expressauthority because it was a foreign affair issue "external# and he has broad power.

o Congress decides China is run by barbarians and passes a resolution that pres. may spend

no money tra!eling to China. Can Congress do this? 2es* has plenary spending power.(& pres. is the one who maes the foreign affairs policiesissues. 'ot a correct answer

because there are two conflicts in a Const. pro!ision. 1eview on pg.


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9o!. &) 1--) the American Em$assy in Tehran 4in Iran was sei3ed $y Iranians 4who hated

the ,% and diplomatic personnel were captured and held hostae.

"resident Carter declared a national emerency under the International Emerency

Economic "owers Act 4IEE"A and $loc(ed the remo!al or transfer of all property andinterests of the Jo!ernment of Iran B basically it fro/e all Iranian assets *( you got our

people then we got your $oney) 6and there was a lot of $oney due to oil7 in the ,% in anExecuti!e rder.

=an. 1-P1 B another executi!e order sined $y "resident which contained a pro!ision

terminatin all leal proceedins aainst the Iranian o!ernment in ,% courts and it

reDuired that ,% citi3ens ar$itrate all claims aainst Iran.

What happens between 0GG and 0GH0? 7ostages are held for this time. &he day 5eagan

was sworn in* the hostages were released and 5eagan established a new executi!e orderunfreezing the Iranian assets.

Xs $rouht this suit $ecause it was pre!entin them from litiatin aainst the Iranian

$an(s Xs contend that the implementation of the areement with Iran was $eyond the

"resident6s power and unconstitutional.

on term policy of ,% to do this: extinuish or renounce claims of ,% nationals aainst

forein o!ernments in return for lumpsum payments or the esta$lishment of ar$itration

procedures.I%%,E: ?oes the "resident ha!e the authority to settle claims of ,% citi3ens aainst forein

nations without the appro!al of %enateM

0?I9J: LE%.A9AL%I%:

The "res. does ha!e the authority to settle claims when such action is necessary to the

resolution of a ma>or forein policy dispute.

There has $een a lon history of our o!ernment allowin the "resident to do such without

the appro!al or ad!ice of %enate therefore) Conress has implicitly appro!ed the practice ofclaim settlement $y executi!e areement.

1-&- B Conress enacted the International Claims %ettlement Act B created a procedure to

implement future settlement areements and $y enactin this) Conress a!e its appro!al of

such areements.

Congress created the International Claims Commission "now the oreign Claims

)ettlement Commission# and ga!e it urisdiction to mae final and binding decisions withrespect to claims by () nationals against settlement funds.

Eid President ha!e )enate appro!e these claims $ through the International Claims

Commission? '9- If he had* this case would not be here.

Iran didnt want it to go to the claims commission because it would tae 2,A5)* and the

Iranians wanted their money bac


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If arrested in another country* as for ,mbassy and call counselor from your country. 2ou

can do this because we are under a treaty* but &exas has been arresting and executing+exicans without their phone calls. &he President ust did away with this "canceled# thetreaty. Can he do this? 'o cases concerning this.

Joldwater !. Carter 8 > contested the Presidents power to cancel treaties

wo )enate appro!al* but dismissed because of non8usticiability. )o thisissue has not been resol!ed.

War in 3ebenon $ )yrians should lea!e. () withdrew from 3ebenon* but then in!aded

Jrenada. Castro sent his agents to Jrenada and was going to turn in into a Communistnation and ill all tourism there. () in!aded it to pre!ent Castros Communism. &oo 1days to tae o!er entire island. Whats the presidents restriction to send troopssomewhere when he thins there is a danger there??&here are about /K militaryengagements where Congress didnt declare WA5.

&itle LK $ War and 'ational Eefense 4 War Powers 5esolution Act $ passed by Congress

/een on $ar exam T


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I$peach$ent D the ulti$ate chec' on presidential power

Art. II) W& The "resident) Kice "resident and all ci!il fficers of the ,%) shall $e remo!ed

from ffice on Impeachment for) and Con!iction of) Treason) /ri$ery) or other hih Crimes

and Fisdemeanors.+

0ouse of Hepresentati!es has the sole power to impeach B $y ma>ority !oteif there is an impeachment in the house) then a trial is held in the %enate.

Art. 1) W# i!es the %enate the sole power to try impeachments and no

person shall $e con!icted wOo concurrence of twothirds of the mem$erspresent.+

Example B Clinton was impeached) $ut the %enate didn6t con!ict him.

%orillard Tobacco Co. v. 1eilly

9ACTS

ISS8

1%818AS,+I+-

"andy v. 1u$sfield * supple$ent case

;;

Chapter 3 My Notes From Books

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Transcript of Chapter 3 My Notes From Books