Spring 2012 Constitutional Law Black Letter Outline IV

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Spring 2012 Constitutional Law Black Letter Outline IV

IV. The Separation of Powers in the Federal Government

A. The Powers of the Executive Branch

1. The powers of the President are set forth in Article II. The principal ones are the duty “to take care that the laws be faithfully executed,” the status of “commander-in-chief,” the power to appoint principal officers of the government, and the power to negotiate treaties. The President also has the power to grant pardons.

2. The Power of the President to Make Policy

a. When there is a law forbidding the exercise of power, the President may act only if his specific powers in Article II are infringed by the Congressional prohibition. These might occur in the following areas:

(1) If Congress attempts to forbid emergency military action.
(2) More uncertain: May Congress prevent or end a military action that is not an emergency? (Query: What is an "emergency"? Only attacks on the territory or citizens of the U.S.?)
(3) Uncertain,: May the President refuse to spend all appropriated funds (impoundment) or refuse to enforce fully all federal laws and regulations?
(4) May Congress attempt to control military tactics?

  1. When there is a law authorizing the exercise of power, the President's power is at a maximum, and he may act as authorized if the law is not unconstitutional for federalism or individual rights reasons and not an excessive delegation of legislative power.

  1. Between a law forbidding the exercise of the power and a law authorizing is a continuum of Congressional actions and inactions. At its midpoint is complete Congressional silence and inaction and little or no historical precedent of similar executive actions. Very close to its terminal points are concurrent resolutions opposing or supporting, or bills that passed both houses and were vetoed. Short of those (closer to the midpoint) would be rejections of bills authorizing or opposing. See Youngstown Sheet & Tube,

p. 176, and Dames & Moore, p. 184. See also In re Debs and the Pentagon Papers case (not in this chapter) for other instances of Presidential action in the absence of Congressional action.
3. Executive Privilege

  1. The President has no absolute privilege to withhold confidential communications, etc., from the courts or Congress. See U.S. v, Nixon, p. 249. Rather, the courts will review claims of privilege and apparently balance the need for confidentiality against competing concerns. Thus, Nixon establishes that the President is subject to some judicial orders (subpoenas), and that executive privilege is not absolute in substance and is subject to judicial review (not a political question).

  1. Whether the President is subject to injunctions is uncertain. See p. 257.

  1. The President may not be sued civilly for acts committed in office. See Nixon v. Fitzgerald, p. 254. The acts in Fitzgerald were acts of an official nature, not personal acts by the President.

  1. The status of acts committed before the President takes office (and perhaps of personal acts taken in office) was partially settled in Clinton v. Jones, p. 257.

4. Appointments and Removals

  1. The President has the power to remove certain high presidential appointees at will. See Myers v. U.S., p. 232; Morrison v. Olson, p. 239. Art III judges can be removed only by impeachment.

  1. The President's power to remove other officials, particularly those in the "independent" agencies, can be limited by Congress. See Humphrey's Executor, p. 232 et seq. See also Morrison v. Olson, p. 239.

  1. Congress may not remove executive officials. See Bowsher v. Synar, p. 236. Nor may Congress appoint them, though the President need not either if they are not principal officers. See Buckley v. Valeo, p. 234; Morrison v. Olson, p. 239. Congress may restrict the President's power of appointment for certain agencies to a list of names or set of qualifications, but is this constitutional?

d. The President must appoint all judges and principal officers. Query: How much, if any, can Congress restrict the President's choice through lists of names or through legislating qualifications for various posts?

e. Officials who can only be removed by the President for cause cannot be restricted to for cause removals of officials under them. See FEF v. PCAOB, p. 247.

B. The Powers of Congress (Vis-a-Vis the Other Branches)

  1. Congress can delegate policymaking powers to the executive, though there is a limit to this. See p. 215 et seq.

  1. Congress cannot make legislation's effect conditioned on some later act of Congress or part thereof (the legislative veto). See INS v. Chadha, p. 220.

  1. Congress cannot grant omnibus power of line item veto to the President,

though it can delegate discretion over spending in particular laws (limiting discretion to the expenditures authorized by those laws). Clinton v. N.Y., p. 226.

  1. An official from the legislative branch may not exercise executive powers. See Bowsher v. Synar, p. 236; Buckley v. Valeo, p. 234; MWAA v. CAAN, p. 246. See also Art. I, § 6 (Ineligibility Clause).

C. The Powers of Article III Judges to Participate in Actions of the Other Branches

  1. Judges may appoint inferior officers if they are within the judges' "department." Also, they can appoint independent prosecutors. See Morrison v. Olson, p. 239.

  1. Judges may serve on administrative agencies if service thereon is appropriate and creates no conflict of interest. See Mistretta v. U.S., p. 245.

  1. Judges can make rules relating to their judicial function.

D. Legislative Courts and Administrative Adjudications

Not all adjudication by the federal government need occur in an Article III court. Administrative agencies can adjudicate in the first instance, as can "legislative courts" such as territorial courts, the Court of Claims, etc. Article III courts ultimately review these other adjudicative bodies.

Rev. 03-01-12

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