Download Professor Wright's Con Law Outline: The Federal Executive Power and more Study notes Law in PDF only on Docsity! Con Law Outline – Professor Wright us.docsity.com Chapter 3: The Federal Executive Power (A) Inherent Presidential Power A. Article II gives power to President and enumerates specific powers but doesn’t limit to what was granted→does that create inherent presidential powers? Youngstown Sheet & Tube v. Sawyer (1952)(p.272; 338) president tried to take over steel mill when threatened strike due to wartime impacts; court declared unconstitutional i. Approach 1: No Inherent Presidential Power (Justice Black)(majority opinion) a. President may act only pursuant to express or clearly implied statutory or constitutional authority b. In this case, no statute expressly authorized taking of private property c. This approach is premised on belief that inherent authority is inconsistent with a written constitution establishing gov’t of limited powers ii. Approach 2: Interstitial Executive power (Justice Douglas) a. Allows president to act without express statutory or constitutional authority so long as the president is not usurping the powers of another branch of government or keeping another branch from performing its duties b. In this case, only Congress may pay compensation for seizure→ usurp/infringement of Congress’s power c. This approach is premised on belief that president may need to exercise powers not specifically enumerated in the Constitution or expressly granted by Congress iii. Approach 3: Legislative Accountability (Zones of Authority)(Justice Jackson) a. President may take any action not prohibited by the Constitution or a statute; this is probably most used test b. Zone One: When president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum 1. Acts are presumptively valid under this zone c. Zone Two: when president acts in absence of either congressional grant or denial of authority, he can rely on own powers, but there may be concurrent authority with congress and distribution is uncertain 1. Impossible to formulate general rules to constitutionality 2. E.g.: president and congress share war powers (case by case analysis) d. Zone Three: when president takes measures incompatible with the expressed or implied will of congress, his power is at its lowest ebb 1. Actions will be allowed only if laws by congress are unconstitutional 2. This case fell under this category (according to Jackson; Congress prevented the seizure of private property) e. Dissents – probably agreed with this; disagreed as to whether congress had acted iv. Approach 4: Broad Inherent Authority (Justice Vinson’s dissent) Con Law Outline – Professor Wright us.docsity.com a. President has authority, at least in some areas, and may act unless such conduct violates the constitution b. Vinson said that the executive should only subjected to people an const. B. We still don’t really know if there are inherent powers or not; when using an above approach, the use is usually implicit and not explicit The Scope of Inherent Power: The Issue of Executive Privilege A. Executive privilege is the ability of the president to keep secret conversations with or memos to or from advisors (no constitutional power, but historical use) US v. Nixon (p.282; 355) Watergate and subpoenaing Nixon for tapes; Nixon claimed executive privilege but was ordered to turn over the tapes; court rejected nonjusticiable quest.; this is a criminal proceeding which alters case from impeachment etc. i. Justiciability a. Claiming an intra-‐branch dispute ≠ defeat of justiciability; court cited Marbury claiming it has power to determine scope of law ii. Executive Privilege a. Sep. of pwrs doesn’t preclude liability because judiciary has final word on the meaning of the constitution (judicial review = equivalent of Pres.’s veto) b. Executive privilege is an inherent power (unlike Black’s majority opinion in Youngstown which rejected any type of inherent power) c. Power is not absolute – would interfere w/ judiciary’s const. function d. Withholding demonstrably relevant info→harm of due process Cheney v. US District Court for D.C. (p.359) whether Δs seeking of mandamus to stop discovery order was proper iii. Distinguished from US v. Nixon – this is a ‘civil suit’ → the need for information is not as important as it would be in a ‘criminal suit’; discovery here was broad iv. Court said that the decision could be raised without invoking executive privilege→no real decision on executive privilege was made here (B) The Authority of Congress to Increase Executive Power A. Line Item Veto Act – president could veto particular parts of appropriation bills while allowing rest to go into effect Clinton v. NY (p.288; 344) cancelled 4722(c) because reduced federal deficit and 1042 because lacked safeguards of tax benefits i. Presidential power must still fall within Art. I – no presidential ability to enact/amend/repeal (must be limited to veto/recommend changes ii. Veto takes whole bill, line item veto changes bill after already law & hinders the carefully crafted bill made by Congress a. President effectively amends the bill with the line item veto iii. Kennedy Concur a. This may stop spending but still unconstitutional b. The convenience doesn’t outweigh the constitutionality Con Law Outline – Professor Wright us.docsity.com D. Unclear whether and how Congress can put other limits on the president’s use of troops in foreign countries (E) Presidential Power and the War on Terrorism A. Detentions: considering the right of those being detained and access to courts Hamdi v. Rumsfeld (2004)(p.332; 376) 8:1 decision that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process and meaningful factual hearing; Hamdi was a US citizen i. Does the federal gov’t have the authority to hold an American citizen apprehended in a foreign country as an enemy combatant? (yes; 5:4) a. Hamdi contended that his detention violated the Non-‐Detention Act stating that no citizen shall be imprisoned or detained except by act of Congress b. Court determined the authorization for Use of Military Force (AUMF) was the act of congress authorizing detention (AUMF authorized President to use all necessary force against nations planning 9/11 attacks) 1. May be detained (1) during combat and (2) with a qualitative limit to keep the person off the battlefield c. Thomas Concurrence: this is part of president’s inherent power d. Dissent: there is no authority to hold an American citizen in the US as an enemy combatant without charges or trial unless Congress expressly suspends the writ of habeas corpus ii. What, if any, process must be accorded to Hamdi? (due process; 8:1) a. Hamdi must be accorded due process and he is entitled to have his habeas petition heard in federal court; no specifics as to what required b. Must be given meaningful factual hearing 1. At minimum, this includes notice of the charges, right to respond, and the right to be represented by an attorney 2. You’ll need more than just blanket statement of facts (e.g. more proof) c. Matthews Test to determine procedures required 1. Weigh the importance of the interest to the individual; 2. Ability of additional procedures to reduce the risk of an erroneous deprivation; and 3. The government’s interests d. They do allow an easier procedure (e.g. admitting hearsay etc) e. The procedural due process question wasn’t answered (Hamdi left US) (2) Military Tribunals President Bush issued an order providing for military tribunals to try non-‐ American citizens accused of participating in or assisting terrorism Con Law Outline – Professor Wright us.docsity.com i. Does pres have authority as commander-‐in-‐chief to create military tribunals, or is creating courts entirely a congressional power? ii. Does it violate the 5th and 6th amendments to try individuals in military tribunals where these protections are not fully provided? Ex Parte Quirin (WWII)(p.347; 381) eight Nazi saboteurs carried explosives and uniforms; Pres issued executive order providing for their trial through military tribunal; Exec. Order precluded judicial review, but SC agreed to hear the case and the tribunal was suspended iii. Distinction between lawful and unlawful combatants a. Lawful combatants (wearing uniform) are treated as prisoners of war; b. Unlawful combatants are subject to trial and punishment by military Tribunals iv. Court didn’t define the ultimate boundaries to persons according to law of war v. Law of War – uncodified common law; Articles of War -‐ codified/accepted by congress as law a. AofW gave Pres the power; courts will then give president deference unless clear conviction that they are in conflict Quirin to Support the Current Attempt to Use Military Tribunals i. Quirin may be different from current war on terror because it was a declared war and statutes authorized military tribunals ii. Supporters (Bush administration) argue Quirin is on point; critics ague that it is a discredited decision that shouldn’t be followed iii. Current legality of military tribunals: Hamdan v. Rumsfeld (2004)(supplement p. 71; 382) Hamdan filed habeas corpus to challenge use of military commission; should be court-‐martialed in accordance with Uniform Code of Military Justice (UCMJ) iii. Court determined that commission lacks power to proceed because its structure and procedures violated the UCMJ and the Geneva Conventions iv. Military commission – the military tribunal created out of military necessity v. Clarifying Quirin a. Quirin recognizes that Congress had preserved what power, under the Constitution and common law of war, the president had to create military commissions b. President and those under command had to comply with the law of war c. So, court must decide if military commission meets standards vi. Common law Military Commission: a. Substituting for civilian courts at times and places where martial law has been declared b. To try civilians as part of a temporary military government over occupied enemy territory c. Convened as an incident to the conduct of war when there is a need to seize and subject to disciplinary measures those enemies who have violated the law of war in their attempt to thwart or impede our military effort vii. Since in Guantanamo(no martial law; occupied territory)→use (c) above Con Law Outline – Professor Wright us.docsity.com a. Government has the burden to make a substantial showing that the crime seeking to try Δ by military commission is acknowledged under law of war viii. What Does Hamdan Get? a. President hasn’t made sufficient showing that procedures should be changed→must use court martial standards of UCMJ ix. Scalia – this is exigency and president should be able to do what is necessary at time of war Boumediere v. Bush (supplement) determining whether detainees at Gitmo have the constitutional privilege of habeas corpus; court found they did iv. Detainee Treatment Act (DTA) wasn’t adequate substitute for habeas corpus v. Court found being in Gitmo as not US was a fiction vi. Dissents: we shouldn’t be giving them this much freedom (F) Checks on the President (1) Suing and Prosecuting the President A. Civil Suit Nixon v. Fitzgerald (p.354; 361) a president, or ex-‐president, may not be sued for money damages for conduct in office (absolute immunity in office) i. If the suit is based on official acts → absolute immunity (courts shouldn’t be able to intrude on President’s decision making ii. Qualified immunity isn’t appropriate because frequent suits may be brought iii. Impeachment/political pressure provide valid deterrents iv. Dissent: there is no compensation to those injured by unconstitutional presidential actions; absolute immunity = above the law Clinton v. Jones (p.357; 362) court ruled that a suit against a president should not be stayed or dismiss if based on a conduct occurring prior to taking office v. There is no basis for immunity for unofficial conduct (2) Impeachment A. Article II § 4 – removed from office for conviction of treason, bribery, and other high crimes and misdemeanors i. House of Representatives has sole power to Impeach ii. The trial is held in the Senate B. High Crimes and Misdemeanors i. One view – limited to acts that violate the criminal law and that can be deemed a serious threat to society ii. Second view – whatever the majority of the house of representatives thinks it is iii. No case addresses either and court deems impeachment as nonjusticiable C. Procedures to Follow i. Is it permissible for to hear evidence through committee? Etc; (non justiciable)