A) On Arguments
1) Textual: argument based on PLAIN MEANING on language
(a) Sub argument: common usage of words at the time of framing
(b) counter: meaning not so plain – hang on not so fast!
3) Framer’s intent (no good anymore by itself – needs something else)
4) Inference from bad consequences (con)/policy argument (all else)
5) Democratic principles –
(a) federalism?/political theory argument
(b) Popular sovereignty: people decide who represent them.
(c) Egalitarianism (asserting, resulting from, or characterized by belief in the equality of all people, esp. in political, economic, or social life.) (before: gender, race, property).
6) nature of the constitution – not to be taken literally requires inference!
7) purpose – function/means to ends
8) Historical: framers new british history – and in the constitution they accepted some things and rejected other
II. Separation of Powers——————————
A) Federalist 47 Madison:
1) liberty is not a natural state of affairs in an organized society
2) human nature is to grab on to additional power
3) accumulation of all powers in the same hands is the definition of tyranny
4) 48: power is of encroaching nature, this statement is about people not gov.
5) to preserve liberty separation of powers is required.
B) What does Separation of Powers mean? (overlap but no complete control!)
1) Madison looks to Montesquieu to explain that separation of powers does not mean that one department must have no partial agency of control of acts of the other. Departments need to overlap somewhat so they can CHECK each other. There is no separation unless powers are blended, but never to the point where one department has whole control of another!
C) Why not just set limits on each branch in the Constitution?
1) parchment barriers – history shows that people don’t abide by what is just written on paper
2) Madison: give each branch power to fight encroachment by others
D) How each branch co-mingles with the others: TYPE OF POWER CHART!
TYPE OF POWER
Branch Exercising those powers
Declare war (even though engaging in war is a typical exec activity)
Confirms high level appointments
Prez proposes laws and budgets
Makes treaties (treaties become law once they are signed)
Invalidate executive actions
III. Construing Congressional Silence—————-
A) Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case – Jackson’s definition of presidential power)
1) Facts: During the Korean War steel workers went on strike. Citing serious national interest in steel production, The President ordered Secretary to seize the steel mills and keep them running. Youngstown challenged seizure as unconstitutional and unauthorized by Congress. (Congress had earlier passed Taft Hartley Act, giving President authority to seek injunction against strikes, but rejected an amendment to permit government seizure to avoid serious shut downs.)
2) Rule: The President cannot seize private property without approval of Congress. The final determination of the constitutional validity of an issue should be made in a case which has proceeded no further than the preliminary injunction stage if there is a showing of irreparable harm.
3) Holding: Power must stem either from an act from Congress or from Constitution itself. Congress gave no power and specifically rejected the means used by President. President’s authority does not allow seizure too far from “theater of war.” There is no relevant law to execute, President cannot usurp lawmaking power.
4) Arguments for : Justice Black’s Majority Argument (Majority): Formalistic Approach- rigid categorization of 3 branches
(a) President’s power must come from Constitution or directly or indirectly from Congress as a legislative act. The Defense Production Act and Selective Service Act do not produce proper authority. Taft-Hartley Act (NLRA) is the relevant labor legislation that deals with unionization, collective bargaining. Specifically the Amendment to give pres power to seize industry was voted down. Therefore, congress thought about this issue and voted it down.
(b) Article II: “the executive Power shall be vested in a President” and “he shall take Care that the Laws be faithfully executed” and “he shall commander and chief of army and navy”
5) Arguments opposed: Possible argument President could make that his power is given by the Constitution:
(a) Executive Power Argument (Art II, §1, cl. 1): – “exec power is to execute law, to take care that law is carried out.” Court says no –not a good argument because exec power means you’re executing something. Constitution limits president’s function in the law making process to the recommending of laws he like and vetoing the laws he thinks are bad, he cannot make law. (presidents order was written like a statute, not to be prescribed by congress but by him)
(b) “Take care power” Argument (Art. II, §3):Court says that he’s not faithfully executing a law because there is no Law.
(c) Commander-in-Chief Argument (Art II Sec 2 Cl. 1): President is Commander in Chief of armed forces and as a result has responsibility and authority to make sure he supplies army with what’s needed.
(i) Counter: Steel industry is not under command of president when he is acting as commander in chief. If they permit this expansion, he could have power to do everything. If he can seize steel industry, then he could have power to seize other things the army needs (ex. food, clothes, textile).
(ii) Counter: This is a Slippery Slope Argument or a Parade of Horribles. To refute this, you need to draw lines – a “we don’t go all the way down—we just go to here.”
6) Justice Jackson’s Approach (Concurring): Functional Approach- amount of Presidential Power is variable- not a fixed amount- power might be in a lot of places- not just legislation and Constitution. This is the main legacy of the case. Much more influential than Black’s “Necessity knows no law” approach. Jackson thinks this situation is in 3rd category because of rejection of Taft Hartley
(a) Tripartite Analysis: less formal, functional approach – branches are blended
(i) President acting with Congressional Authority (Express or implied authorization from Congress)(Presidential power is strongest b/c he’s acting with his own authority + Congressional authority)
(ii) President acts, Congress has taken no action or ambiguous congressional inactionPres acting with his own powers. Cong hasn’t given or forbidden action. Presidential power is uncertain. In these cases test of power is likely to depend on imperatives of events and contemporary imponderables rather than on abstract theories of law.
(iii) President acting in defiance of Cong/ Congress attempts to prohibit Presidential action.
(a) 1973 –War powers resolution act. Three ways President can declare war:
(i) by CONG act – C 46
(ii) Specific statutory authorization – C 47-49
(iii) National emergency as result of attack on US.
(iv)BUT, president should always try to get CONG consent if possible
(01) He must give CONG report within 48 hours if he introduces troops into hostility stating why and where he got the authority from and anything else CONG wants to know.
(02) He MUST terminate use of force in 60 days UNLESS
a. CONG declares war or authorizes specific use of armed forces
b. CONG extends 60 year period OR
c. CONG cant meet to decide on issue
(03) If at any time CONG says use force is NOT OK, He must PULL OUT.
(b) New School: C 47 No declaration of war anymore, but authorization of use of military force against iraq resolution 2002. So the unresolved questions remains: is it CONSTI to engage in war without CONG approval? Or is this CONG approval? Or, what is war, how does CON define it? Can CONG express approval implicitly, by simply approving similar action in the past? (Joint Resolution for the Authorization for the Use of Military Force in response of 9/11, authorized president “to use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks” and to protect against future attacks by such people/groups)
(c) Allowed President to engage troops in hostilities without defining a nation force should be directed at
(d) As a result of the AUMF, alleged enemy combatants have been detained in US and at Guantanamo Bay for indefinite periods, without formal charges, and without access to counsel. ISSUE – do these detainees have access to US federal courts to protest detention or may they be denied and ultimately tried at the executive’s discretion?
D) What powers does President have in time of emergency? So none of this was an issue in the past cause captured enemies were enlisted soldiers and therefore POW. – could be exchanged at the end of conflict. Now, dealing with NON-STATE ACTORS is diff. No clear end of hostility, and no clear place to repatriate captured enemy combatants since they don’t fight for patria. – So what about detention, interrogation and innocents? Also, does CON treat citizens and no citizens with diff standards?
E) Article 3 court v. military tribunal? Judges elected, v. appointed by the executive. (without life tenure and serve at the pleasure of president???). procedures we associate with fair trials are largely lacking in military tribunals.
V. Foreign Affairs
A) Can President Bush unilaterally attack Iraq without going to Congress?
1) War Powers Act of 1973 – allows the president to introduce troops into hostile situations only if:
(a) Declaration of War