Transcript Chapter V

Chapter V
Separation of Powers
Allocation of Authority
Legislative
Executive
Judicial
Checks & Balances
Impeach
Recommend Legislation
Appropriate
Veto Legislation
Advise/Consent
Appointment Justices
Judicial Review
Separation of Powers Analysis
(Structural)
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Textual
Functional
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Aggrandizement
Encroachment
Prudential
Historical
Separation of Powers
(Review)
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Judicial Review
Appointment/Impeachment of Justices
Exceptions Clause
Congressional power to create lower
federal courts
Justiciability
Youngstown Sheet & Tube Co. v. Sawyer (1952)
Youngstown Sheet & Tube Co. v. Sawyer (1952)
How would you describe Justice Black’s approach?
The Elements of Justice Black’s Method
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Characterize the Action.
Statutory Authority?
Independent Constitutional
Authority?
Applied?
Justice Frankfurter’s Approach
“Therefore the way the
framework has
consistently operated
fairly establishes that it
has operated according to
its true nature.”
Justice Jackson’s Model
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Express or implied
authorization of Congress.
Absence of a grant or
denial of authority.
Incompatible with the
expressed will of Congress.
Overlay of realism &
congressional responsibility.
Separation of Powers Applied
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The problem of Executive impoundment.
The relevance of The Impoundment
Control Act.
The Appointments Clause
Article II, § 2, cl. 2:
“[The President] shall nominate, and by and
with the Advice and Consent of the Senate shall
appoint Ambassadors, other public Ministers and
Counsels, Judges of the supreme Court, and all
other Officers of the United States … but the
Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the
President alone, in the Courts of law, or in the
Heads of Departments.”
Three Possibilities
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Principal Officer
Inferior Officer
Employee
Measurement
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Nature & extent of officer’s duties,
policymaking functions
Independence and source of supervision
(answers directly to the President)
Tenure: temporary, continuing or
intermittent (removal possibilities)
Principal Officers
Employees
Inferior Officers
Morrison v. Olsen (1988)
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Ethics in Government Act of 1978
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Judiciary appoints independent counsel to
investigate Executive Branch wrongdoing
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AG must request the appointment
Removable by AG for “good cause”
Morrison v. Olsen (1988)
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Two Issues:
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Is the Independent Counsel a principal or
inferior officer?
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Why is this important?
Can the appointment be lodged outside the
Executive Branch?
Morrison v. Olsen (1988)
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Inferior Officer
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Removable by AG (inferior to AG)
Limited duties (investigation & prosecution);
no policymaking function
Limited jurisdiction as specified by law and
the terms of appointment
Limited tenure (inherently finite)
Morrison v. Olsen (1988)
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Interbranch Appointment
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Text (“as they think proper”)
Separation of Powers
Aggrandizement
 Encroachment
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Incongruity (Article III)
Morrison v. Olsen (1988)
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Could the appointment have been lodged
in Congress?
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Why or why not?
Recess Appointments
Article II, § 2, cl. 3:
“[T]he President shall have the Power to
fill up all Vacancies that may happen
during the Recess of the Senate, by
granting Commissions which shall expire
at the end of their next Session.”
The Removal Power
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Impeachment
Textual Silence =
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Functional Arguments
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Aggrandizement
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Example: Congressional Retention of Removal Power
Encroachment
The Unitary Executive (Scalia)
Morrison v. Olson (1988)
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Does the imposition of the “good cause” removal
limitation violate the separation of powers?
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Justice Scalia’s approach
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Aggrandizement (to Congress)
Encroachment (on the Executive)
Independent Agencies? (e.g., Federal Reserve Board)
Justices Black, Frankfurter & Jackson
(Youngstown)
Speech & Debate Clause
Article I, § 6, cl. 1:
“[F]or any Speech or Debate in either
House, they shall not be questioned in any
other place.”
Speech & Debate Clause
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Absolute privilege
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Criminal or civil liability
Legislative acts
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Speeches & debates in Congress
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Floor, committee, hearings
Introducing bills
Voting
Cf. Hutchinson v. Proxmire
Members of Congress & their aides
Executive Immunity
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No immunity from criminal liability
No immunity from injunctive relief
Qualified immunity from damages liability
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Subjective & objective good faith
Right must have been “clearly established”
President: absolute immunity from damages
liability – Nixon v. Fitzgerald
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“Outer perimeter” of official duties
Presidential aides = qualified immunity
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Exception: National Security?
Clinton v. Jones
Clinton v. Jones
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Is the President absolutely immune from
answering to civil damages litigation
during his/her tenure in office?
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DC says “no” but delays the trial until after
the President’s term of office expires.
CA says “no” and rules that the delay is
inappropriate as the functional equivalent of
an immunity.
Clinton v. Jones
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Why doesn’t the absolute immunity of
Nixon v. Fitzgerald apply?
Clinton’s principle argument is based on
“text and structure” of the Constitution.
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What is the argument?
On what basis does the Court reject it?
Given the aftermath, do you agree with the
Court?
Executive Privilege
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Qualified privilege for Executive Branch
communications (intra-branch)
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Presumptive privilege
Balancing test:
Grounds on which the claim of privilege
is asserted versus the purpose for which
disclosure is sought.
United States v. Nixon
United States v. Nixon
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Obstruction of justice investigation pertaining to
Watergate break in
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Special prosecutor seeks the White House tapes
Nixon argues for an absolute privilege, the scope
of which is to be determined by the President
alone.
Full circle to Marbury v. Madison
Court’s response?
Cheney v. US District Court (2004)
The US Attorney Controversy
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Eight US Attys Dismissed
Replacements appointed by AG Gonzales
Legality?
Alternative Models
Investigation by Congress
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Subpoenas approved by Senate & House
Committees, but not yet served
President says that his aides will not testify
28 U.S.C. § 541
(a) The President shall appoint, by and with the advice
and consent of the Senate, a United States attorney for
each judicial district.
(b) Each United States attorney shall be appointed for a
term of four years. On the expiration of his term, a
United States attorney shall continue to perform the
duties of his office until his successor is appointed and
qualifies.
(c) Each United States attorney is subject to removal by the
President.
28 U.S.C. § 546
a) Except as provided in subsection (b), the Attorney General may
appoint a United States attorney for the district in which the
office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States
attorney a person to whose appointment by the President to that
office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section
may serve until the earlier of—
(1) the qualification of a United States attorney for such district
appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the
Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district
court for such district may appoint a United States attorney to
serve until the vacancy is filled. The order of appointment by the
court shall be filed with the clerk of the court.
28 U.S.C. § 546
a) Except as provided in subsection (b), the Attorney General may
appoint a United States attorney for the district in which the office
of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney
a person to whose appointment by the President to that office the
Senate refused to give advice and consent.
(c) A person appointed as United States attorney under
this section may serve until the qualification of a United
States Attorney for such district appointed by the
President under section 541 of this title.
United States v. Nixon
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Nixon argues for an absolute privilege, the
scope of which is to be determined by the
President alone.
Full circle to Marbury v. Madison
Court’s response?
Cheney v. US District Court (2004)
The Allocation of Authority over
Foreign Affairs
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Congress as a whole:
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Power over foreign commerce
Uniform rule of naturalization
Define an punish piracies & felonies
committed on the high seas
Power to declare war, raise navy & army, and
provide for their regulation
Provide for common defense, spend for the
general welfare
The Allocation of Authority over
Foreign Affairs
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Senate:
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Advice and consent on treaties
Advice and consent on ambassadors &
ministers
The Allocation of Authority over
Foreign Affairs
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President:
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Power to enter treaties w/ advice & consent
Power to appoint ambassadors w/ advice &
consent
Power to receive ambassadors from foreign
nations
Power as commander in chief
The Allocation of Authority over
Foreign Affairs
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Nontextual power of Congress
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Regulation of immigration
Nontextual power of the President
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Enter EA (international compacts) with foreign
nations
The Allocation of Authority over
Foreign Affairs
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The possibility of nontextual authority in
the realm of foreign affairs
The relevance of Youngstown
 Justice
Black
 Justice Frankfurter
 Justice Jackson
US v. Curtiss-Wright Corp.
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Armed conflict in the Chaco between
Boliva & Paraguay
Joint Resolution of Congress
Executive Proclamation
Criminal prosecution for sales of arms in
the US
US v. Curtiss-Wright Corp.
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Apply Youngstown
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Black, Frankfurter, Jackson
Assume the absence of a JR & reapply
How does the approach of the CurtissWright majority differ?
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Assume no JR. Same result?
Dames & Moore v. Regan
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US diplomatic personnel taken hostage in
Iran (11/4/79)
DM sues Government of Iran; assets of GI
attached (12/19/79)
Executive Agreement w/ Iran (1/19/81)
Hostages Released (1/20/81)
Dames & Moore v. Regan
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Executive Orders (issued pursuant to the
EA):
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Nullified all attachments
Transfer of Iranian assets
Suspension of claims
DM files a separate lawsuit challenging the
constitutionality of the EO’s
Dames & Moore v. Regan
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What precedent does Justice Rehnquist
rely on?
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What does he add to Jackson’s model?
Nullification & Transfer
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Of what relevance is the IEEPA?
Youngstown?
Dames & Moore v. Regan
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Suspension of Claims
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Of what relevance are the IEEPA and the
Hostage Act?
What aspect of Youngstown is relevant here?
Where would this case fall in Jackson’s
spectrum?
The Allocation of the Authority to
Make War
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Article I Authorities v. Article II Authorities
The Framer’s Model
Modern Practices
Who decides the balance of power
between Congress and the Executive?
The Authority of Congress, Art. I, § 8:
“The Congress shall have Power To lay and collect Taxes
… to pay … for the common Defence; To declare War,
grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water; To raise and
support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years; To
provide and maintain a Navy; To make Rules for the
Government and Regulation of the land and naval
Forces; To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel
Invasions; To provide for organizing, arming, and
disciplining the Militia, and for governing such Part of
them as may be employed in the Service of the United
States.…"
The Allocation of the Authority to
Make War
“The constitution supposes, what the
history of all Governments demonstrates,
that the Executive is the branch of power
most interested in war, and most prone to
it. It has accordingly with studied care,
vested the question of war in the
Legislature.”
James Madison
The Authority of the President, Art. II, § 2:
“The President shall be the Commander in Chief of the Army
and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the
United States….”
The Allocation of the Authority to
Make War
The President’s power as Commander in
Chief “would amount to nothing more than
the supreme command and direction of the
military and naval forces, as first General
and Admiral of the confederacy.”
Alexander Hamilton
The Drafting
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The power to make war
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The power to declare war
What is the
significance of
the change?
Madison Notes: “Mr. M and Mr. Gerry moved to
insert ‘declare,’ striking out ‘make’ war; leaving to
the Executive the power to repel sudden attacks.”
The Prize Cases
Confederate forces
attack Fort Sumter in
Charleston Harbor (April
12, 1861)
The Prize Cases
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Fort Sumter surrendered (April 13, 1861)
President Lincoln signs Proclamation of
Blockade (April 19, 1861)
Ships and cargo seized pursuant to
blockade (1861-1865)
The Prize Cases
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Were the seizures constitutionally valid?
Did the President have the constitutional
authority to issue and enforce the
proclamation?
Is decision in the Prize Cases consistent
with the framer’s model?
Is it consistent with Youngstown?
Historical Practices
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The Mexican War – invade first declare
later
The Korean War – silence and tacit
support
The Vietnam War – Gulf of Tonkin
Resolution
Gulf of Tonkin Resolution
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Gulf of Tonkin Incident (August 2 & 4, 1964)
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Controversy
Scope of the Attack
False Alarm (Second Attack)
Gulf of Tonkin Resolution passed (August 9,
1964)
 Senate: 88-2
 House: 416-0
Repeal (January 14, 1971)
Paris Peace Accords (January 7, 1973)
Saigon Evacuation (April 30, 1975)
The Vietnam War
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Undeclared?
Unconstitutional?
Unwise?
Are these questions
identical?
The War Powers Resolution
(Adopted in 1973 over President Nixon’s Veto)
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Limits President’s authority to introduce
US troops into “hostilities”
Requires consultation & reporting
Sixty to ninety day limit on deployment
Two House veto
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INS v. Chadha
The Resolution in Practice
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Nixon – Veto message
Ford – Saigon rescue
Carter – Iran hostage rescue mission
Reagan – Grenada, Nicaragua, El Salvador,
Honduras, Lebanon & Libya
Bush I – Panama
Clinton – Sudan, Afghanistan, Iraq &
Yugoslavia
WPR – Constitutionality
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Is the WPR unconstitutional?
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Did the Presidents (from Ford to Clinton) violate
the Constitution?
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Does presidential practice alter the original
model?
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To what extent should modern realities alter the
constitutional model?
Gulf of Tonkin Resolution
(August 19, 1964)
That the Congress approves and supports the
determination of the President, as Commander in Chief,
to take all necessary measures to repel any armed attack
against the forces of the United States and to prevent
further aggression.
…
This resolution shall expire when the President shall
determine that the peace and security of the area is
reasonably assured by international conditions created
by action of the United Nations or otherwise, except that
it may be terminated earlier by concurrent resolution of
the Congress.
Authorization for the Use of Military Force
(September 14, 2001)
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES
ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future
acts of international terrorism against the United States
by such nations, organizations or persons.
Joint Resolution to Authorize the Use of United
States Armed Forces Against Iraq
(October 2, 2002)
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES
ARMED FORCES.
(a) AUTHORIZATION.
The President is authorized to use the Armed Forces of
the United States as he determines to be necessary and
appropriate in order to
(1) defend the national security of the United States
against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council
Resolutions regarding Iraq.
War & Constitutional Authority
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Was the escalation of the war in Vietnam
authorized by Congress?
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Was the invasion of Afghanistan authorized by
Congress?
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Constitutional?
Constitutional?
Was the invasion of Iraq authorized by
Congress?
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Constitutional?
War & Constitutional Authority
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Could the President have engaged in these
wars without congressional authorization?
Without congressional funding?
Does congressional funding implicitly
endorse the executive’s action?
Current Defense Appropriations
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House: withdrawal of troops to begin by
March 2008 and be completed within 180
days (with some limited exceptions).
Senate: nonbinding goal of complete
redeployment by 3/31/08.
Constitutional?
Detention of Enemy Combatants
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Did the September 14, 2001 JR (“AUMF”)
authorize indefinite detentions of US
citizens taken captive in the war on terror?
Hamdi v. Rumsfeld
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AUMF
The Non-Detention Act
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Youngstown
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Detention of Enemy Combatants
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Assuming the AUMF did authorize such
detentions, what other legal challenges
might be raised to the detentions
(including to detentions of non-citizens)?
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Hamdi v. Rumsfeld
Rasul v. Bush (habeas corpus)
Detention of Enemy Combatants
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Hamdan v. Rumsfeld, 126 S.Ct. 2749
(2006) (5-3 ruling)
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Challenge to use of military commissions
created by the EB
Rejects “jurisdiction stripping” argument
 Not expressly authorized by Congress
 Inconsistent with UCMJ
 Inconsistent with the Geneva Conventions
 Youngstown?
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Separation of Powers:
Treaties
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The Treaty Power: Shared Authority
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Permissible Subject Matters
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Any matter of international concern
Treaty v. Statute
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The President negotiates
The Senate approves (2/3 majority)
Declaration of War?
Supremacy Clause
Treaty Termination (abrogation)
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Justiciability
Separation of Powers:
Executive Agreements
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Definition: A non-treaty international compact between the
US and a foreign sovereign.
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Three Types:
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Congressionally authorized
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Delegation
Implementation
Treaty authorized
Independent presidential authority
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Power to recognize foreign nations
Commander in Chief
Separation of Powers:
Executive Agreements
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Unenumerated Power (“Authority”)
Permissible Subject Matters
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Any matter of international concern
Substitute for treaty?
Supremacy Clause
Displacement of statutes or previously ratified
treaties
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Types 1 & 2: yes
Type 3: controversial
Dames & Moore v. Regan
Separation of Powers:
The Administrative State
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The Nondelegation Doctrine
Textual limits on congressional power
Aggrandizement
Encroachment
Mistretta v. United States (1989)

Sentencing Reform Act of 1984 (SRA)

Creates US Sentencing Commission
Independent commission within the Judicial Branch
 Comprised of seven voting members (three of
whom must be sitting judges) appointed by
President w/ advice & consent
 SC is vested with the authority to promulgate
determinative-sentence guidelines

Mistretta v. United States (1989)

Does the delegation of the authority to
promulgate determinative-sentence
guidelines violate the Nondelegation
Doctrine?
Mistretta v. United States (1989)

“Congress generally cannot delegate its
legislative power to another Branch.”
Tension?

“[T]he nondelegation doctrine does not
prevent Congress from obtaining the
assistance of its coordinate Branches.”
Mistretta v. United States (1989)

The tension resolved as an accommodation of
modern realities:
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Intelligible principle standard
Broad general directives
Examples:
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Determine excessive profits
Fix commodity prices
Determine just and reasonable utility rates
Regulate broadcast licensing as public interest,
convenience, or necessity require
Mistretta v. United States (1989)

The charge to the US Sentencing Commission:
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Establish determinative sentencing ranges & system
through which to apply those ranges
Meet the purposes of the SRA
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Seriousness of offense & respect for the law
Adequate deterrence
Protect the public
Correctional treatment
Provide certainty & fairness in meeting the goals of
the SRA
Reflect knowledge of human behavior as it relates to
criminal justice process
Mistretta v. United States (1989)

The Majority on nondelegation:
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Intelligible principle standard (easily?)
satisfied.
An “absence of standards” standard?
Mistretta v. United States (1989)
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The Dissent (Scalia):
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The doctrine of unconstitutional delegation “is
not an element readily enforceable by the
courts.” Why?
The Executive Branch and the Judicial Branch
necessarily “make law” within the confines of
their respective functions.
Agrees with the majority?
Mistretta v. United States (1989)

Does the creation and operation of the US
Sentencing Commission violate the
separation of powers?
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Aggrandizement
Encroachment
Mistretta v. United States (1989)

Does the placement of the Commission
within the Judicial Branch aggrandize
legislative power to that branch?
Mistretta v. United States (1989)

Majority:

History of administrative delegations
Rules Enabling Act
 Administrative Office of the US Courts

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Commissions powers are not united with the
judiciary, but independent of it.
No increase in the powers of the Judicial
Branch.

Compare prior sentencing practices
Mistretta v. United States (1989)

Does the placement of the Commission
within the Judicial Branch encroach upon
or weaken the judicial power?
Mistretta v. United States (1989)

Majority:


No interference with constitutional assigned
function of judicial branch.
Courts will continue to imposes sentences
within the broad range established by
Congress.
Mistretta v. United States (1989)

The Dissent (Scalia):
“[T]he power to make law cannot be exercised
by anyone other than Congress, except in
conjunction with the lawful exercise of executive
or judicial power.”
What does this mean? What are the
consequences of this model with respect to
“lawful delegations”?
Mistretta v. United States (1989)

The Dissent (Scalia):

Notes the problem of an independent agency
operating within the Judicial Branch but not
answerable to the Judicial Branch.
Is there a distinction between delegating to the
courts a power to implement rules of procedure
and delegating that same power to an independent
agency?
 An encroachment?

Morrison v. Olsen (1988)
(revisited)

Ethics in Government Act of 1978



Judiciary appoints independent counsel to investigate
Executive Branch wrongdoing (at request of AG)
Removable by AG for “good cause”
Issues:

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Inferior officer
Justice Scalia
Interbranch appointment
Dissents
Removal
Separation of Powers (the EGA “taken as a whole”)
Morrison v. Olsen (1988)

Aggrandizement

An increase in congressional powers?


What powers does Congress exercise under the
Act?
An increase in judicial powers?

What powers does the judiciary exercise under the
Act?
Morrison v. Olsen (1988)

Encroachment (Usurpation)

Impermissibly undermines Executive Branch
authority? Disrupts the proper balance of
authority among the branches?

What aspects of the EGA are crucial to these
questions?
Morrison v. Olsen (1988)

The Dissent – The Unitary Executive
(Justice Scalia):


“The executive Power shall be vested in a
President of the United States.”
Key questions:
Is the conduct of a criminal prosecution an
executive power?
 Does the EGA deprive the President of exclusive
control over that power?

Morrison v. Olsen (1988)

The Dissent (Justice Scalia):



Last ¶, page 391
First ¶, page 392
The Consequences of the “Unitary
Executive” model


Domestic
Foreign Affairs
Morrison v. Olsen (1988)

Revisiting the Key questions:
Is the conduct of a criminal prosecution an
executive power?
 Does the EGA deprive the President of exclusive
control over that power?
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California
The supreme executive power of
this State is vested in the
Governor. The Governor shall see
that the law is faithfully executed.
Cal.Const., Art. V, § 1.
It shall be the duty of the
Attorney General to see that the
laws of the State are uniformly
and adequately enforced.
Cal.Const., Art. V, § 13.
INS v. Chadha (1983)
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Chadha overstays visa
INS initiates proceedings to deport
Immigration Judge suspends deportation
pursuant to statutory authority
House vetoes suspension pursuant to
statutory authority
USCA holds the “one-House veto”
unconstitutional
INS v. Chadha (1983)
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How would you characterize the
constitutional issue presented?
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Nondelegation?
Textual Checks & Balances?
Aggrandizement?
Encroachment?
INS v. Chadha (1983)
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What are the three elements of the
majority’s approach?
1. _________________
2. _________________
3. _________________
INS v. Chadha (1983)
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Was the exercise of the one-House veto
a “legislative act”? (What is the standard
for making this determination?)
INS v. Chadha (1983)
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Did the exercise of the one-House veto
satisfy the bicamerlism requirement?
Would a two-House veto satisfy that
requirement?
INS v. Chadha (1983)
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Did the exercise of the one-House veto
satisfy the presentment requirement?
Would a two-House veto satisfy that
requirement?
INS v. Chadha (1983)
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How the approach of the dissent differ
from that of the majority? Consider
Marbury & McCulloch.
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Nondelegation?
Textual Checks & Balances?
Aggrandizement?
Encroachment?