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Constitutional Law I
University of Alabama School of Law
Horwitz, Paul

Horwitz Con Law Spring 14
Separation of Powers
I.                     Judicial Power
II.                    Legislative Power
a.        Power of congress
                                                               i.      Article I – “All legislative powers herein granted shall be vested in a congress of the US…”
1.       Power to make laws, power to investigate, hear, and consider mattes upon which legislation may be enacted, and do all other things necessary or proper to the enactment of legislation.
                                                              ii.      Scope
1.       Doctrine of enumerated powers
a.        Powers not express are reserved for the states.
2.       Doctrine of implied powers
a.        Necessary and proper clause
                                                                                                                                       i.      Power to make all laws necessary and proper for carrying into execution their powers.
b.       Limitation
                                                                                                                                       i.      Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution.
3.       Inherent powers
a.        International powers
                                                            iii.      Delegation of legislative power
1.       Broad delegation allowed
2.       Limitations on delegation
a.        Power     cannot be uniquely confined to congress
b.       Delegation will not be upheld unless it includes intelligible standards for the delegate to follow – almost anything will pass.
c.        Separation of powers limitations
                                                                                                                                       i.      Restricts congress from keeping certain controls over certain delegates
1.       Ex – congress cannot give itself the power to remove an officer of the exec. branch by any means other than impeachment.
a.        If congress delegates rulemaking power to an exec branch agency (ex – FCC), it may not retain the power to fire the agency head.
2.       Ex – congress cannot give a government employee who is subject to removal by Congress (other than impeachment) purely executive powers.
b.       Commerce power
c.        Taxing and spending powers
d.       War power
                                                               i.      Power to declare war, raise and support armies, provide for and maintain a navy, make rules for the armed forces, and organize, arm, disciple, and call up the militia.
                                                              ii.      Economic regulation
1.       During war
a.        Pervasive power
b.       National price and rent controls
c.        Conscription
d.       Regulation of civilian/military production and services
2.       Post war
a.        Power extends to remedy wartime disruptions
                                                            iii.      Military courts and tribunals
1.       Power found in Art. I – “congressional power to make rules for government and regulation of armed forces)
2.       Judicial review
a.        Federal and state courts have no general power to review court martial proceedings.
b.       However, in habeas corpus cases, the Art. III courts and SCOTUS, may make a limited inquiry into the military court’s jurisdiction of the person and offense or the validity of the court’s legislative creation.
3.       Court martial of enemy civilians and soldiers permitted
a.        Suspension of habeas corpus for enemy combatants
b.       Boumediene:
                                                                                                                                       i.       Congress does not have the power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute for habeas corpus review.
                                                                                                                                      ii.      A meaningful substitute would allow prisoners to:
1.       Challenge the president’s authority to detain them indefinitely.
2.       Contest the military commissions findings of fact.
3.       Supplement the record on review with exculpatory evidence discovered after the military commission’s proceedings.
4.       Request release.
e.        Power over external affairs
f.         Power over naturalization and citizenship
g.        Property power
h.       Investigatory power
i.         Congressional immunity
j.         Congressional veto of executive actions invalid
                                                               i.      Legislative veto is an attempt by congress to overturn an executive agency action without bicameralism.
                                                              ii.      Usually arises where congress delegates discretionary power to the president or executive agency and in an attempt to control the delegation, congress requires president or agency to present any action taken under the discretionary power to certain members of congress for final approval.
                                                            iii.      Unconstitutional because to be valid the legislative action (the veto) must be approved by both houses and presented to the president for approval.
                                                            iv.      Chadha:
1.       Facts: Congress granted the INS the power to deport or suspend from deportation illegal aliens. INS decisions to suspend deportations had to be submitted to congress.
2.       Rationale: Either house could pass a resolution overriding the decision – unconstitutional.
III.                  Executive Power
a.        The entire “executive power” is vested in the President by Article II, Section 1 of the Constitution. Various executive functions may be and are delegated within the “executive branch” by the president or by Congress.
b.       Presidential Powers Under Art II
                                                               i.      Appointment and removal of officers
                                                              ii.      Pardons
                                                            iii.      Veto power
                                                            iv.      Power as chief executive
                                                              v.      War
                                                            vi.      Foreign relations
                                                           vii.      Treaty power
                                                         viii.      Executive agreements
                                                             ix.      Supreme court justices
c.        Appointment and Removal
                                                               i.      Appointment:
1.       With advice and consent of senate, empowered to appoint “all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for . . . but Congress may vest the appointment of inferior officers as they think proper in the President alone, in the courts of law or in the heads of departments.”
2.    No appointments by congress
a.     Congress may not appoint members of a body with administrative or enforcement powers.
b.       Congress may appoint its own officers to carry on internal legislative tasks
3.       Principal vs. inferior officers
a.        Principal officers may be appointed only by the president, with the advice and consent of the Senate (Morrison v. Olson).
b.       Appointment of inferior officers may be vested in other departments (Morrison v. Olson).
                                                                                                                                       i.      Morrison v. Olson: A special prosecutor with limited duties of investigating and a narrow range of persons and subjects is an inferior officer – congress is free to vest this power to appoint a special prosecutor in the judiciary.
c.        Morrison 4 factors to determine if inferior or principal:
                                                                                                                                       i.      Direct supervisor
                                                                                                                                      ii.      Limited in duties
                                                                                                                                    iii.      Jurisdiction limited
                                                                                                                                    iv.      Tenure temporary
                                                              ii.      Removal:
1.       Constitution silent except for ensuring tenure of all Art. III judges during good behavior.
2.       By president
a.        President probably can remove high level, purely executive officers (ex – cabinet members) at will, without any interference from congress.
b.       However, after Morrison v. Olson, it appears that Congress may provide statutory limitations (ex – removal for good cause) on the president’s power to remove all other executive appointees.
3.       By Congress
a.        Limitation on powers of removable officers
                                                                                                                                       i.      Congress cannot give a government employee who is subject to removal from office by congress any powers that are truly executive in nature.

ual weight – the last in time will control.
b.       However, no treaty is co-equal with the constitution.
                                                            iv.      Executive agreements
1.       President has power to enter into agreements with other countries; independent of treaty power and may be exercised without consent of senate.
2.       Exec agreements that are not consented to by the senate are not the supreme law of the land – conflicting federal statutes and treaties will prevail regardless of which one was adopted first. 
3.       Dames & Moore: The President has authority to settle claims through executive orders where the settlement of claims is necessary for the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to the President’s action.
h.       Executive privilege (secrets) and immunity
                                                               i.      Privilege
1.       US v. Nixon: Although not expressly mentioned in constitution, a privilege is recognized to protect against the disclosure of presidential communications made in the exercise of executive power.
2.       It is the role of the court to decide whether the president has executive privilege and, if so, its scope.
3.       US v. Nixon: Where communications relate to military, diplomatic, or sensitive national security secrets, the claim of privilege is given the utmost deference by the courts. However, other presidential communications are only presumptively privileged
4.    Executive privilege is not absolute, but rather must yield when there are important countervailing interests.
5.       It appears that an executive branch decision to withhold information will be given more deference in a civil trial than in a criminal (Cheney v. US District Court).
6.       Presidential power yields to a demonstrated specific need for essential evidence in a criminal trial (US v. Nixon).
7.       No person, not even the president, is above the law.
8.       US v. Nixon: A presidential claim of privilege asserting only a generalized interest in confidentiality is not sufficient to overcome the judicial interest in producing all relevant evidence in a criminal case.
                                                              ii.      Immunity
1.    A president may not be sued for injunctions or for money damages for actions taken while in office.
2.       No basis for immunity for unofficial conduct.
3.       Although the president has absolute immunity to suits for damages, other executive officials generally only have qualified immunity – as long as their conduct doesn’t violate clearly established statutory or constitutional rights of which a reasonable person would have known.
4.       Clinton v. Jones: The United States Constitution does not grant the President of the United States immunity while in office from suit for actions allegedly occurring prior to his assuming the presidential office.
i.         Impeachment
                                                               i.      Persons subject
1.       P, VP, and all civil officers of US
                                                              ii.      Grounds
1.       Treason, bribery, high crimes and misdemeanors
                                                            iii.      Impeachment by the house
1.       Majority vote in the house necessary to invoke charges of impeachment
                                                            iv.      Conviction by senate
1.       2/3 vote in senate necessary to convict.
j.         How to Interpret Art II Powers?
                                                               i.      Broadly – executive power is vested in POTUS and no one else; valuable to have power in the hands of one who can act vigorously.
                                                              ii.      Narrowly – places a lot of power into the hands of one, which can create tyranny.