I. Separation of powers
a. Relevant Constitutional Provisions
i. USC Art. I, § 8 – Congress
1. shall have the power to lay and collect taxes, duties, etc.
2. make all law which shall be necessary and proper
ii. Art. I, § 10 – States
1. No State shall enter into any treaty, alliance or Confederation…nor shall a State, without conesent of Congress, lay any imposts or duties
iii. Art. II, §2 – President
1. Shall have the power, with the consent of Congress (2/3’rds majority), to make Treaties , appoint ambassadors, etc.
b. Jackson Concurrence – Sources and Strength of Powers of the President —Presidential power can only come from the USC or the Legislature
i. Presidential action with express or implied authorization of Congress
1. P + C (express or Implied)
a. This is when Presidential power is at its height and it is unlikely that the courts will question action taken under these circumstances
b. implied – acquiecesence of congress “invites“ president to act
ii. Presidential action with undetermined Congressional Position
1. P ? C (unknown Congressional intent or consistent acquiescence)
a. Presidential power in the absence of either congressional grant or denial of authority can grow through Congressional acquiesence over long periods of time. Idea being that if Congress did like what the president was doing they had plenty of time to say something
iii. Presidential action in violation of explicit or implied Congressional intent
1. P – C (Going against Congressional wishes)
a. Presidential powers are at their lowest ebb when acting in contradiction of Congressional Action.
c. Rule of statutory construction:
i. Charming Betsy
1. If any ambiguity exists in a statute which a court is interpreting and one option si consisten with US international agrements and the other is not; the court should chose the statutory construction which is consistent with the US international agreements
d. Case Law
i. U.S. v. Guy Capps, 1953
1. President was given authority to act to limit agricultural imports under certain conditions and Congressional act laid out specific provisions required to act
2. President failed to meet those statutory requirements and therefore had exceeded his mandate from Congress
a. Result – action invalidated and underlying contracts agreed to nullified as well
ii. Consumers Union of US v. Kissinger, 1974
1. President enters into Voluntary Export Restraint Agreement with Japan and Europe
a. Non-binding action taken to persuade producers to limit exports
2. Congress had delegated power to president to create legally binding agreements to restrict exports, but only if certain conditions are met
a. President entered into VRA w/out taking congressionally mandated steps for legally binding restrictions
3. Pres actions wer
terestes of a foreign country or national
c. peroperty in which a forein country or national has any interest
i. in order to deal with any unusual or extraordinary eternal threat to the national security, foreign policy or economy of the United States
v. Fast Track Negotiation authority
1. Grants president power to negotiate a deal and
a. Congress agrees to grant the deal a single up or down vote w/out amendments, etc.
b. Committee must discharge w/in 45 days, no filibusters, etc.
2. Last Fast track deal expired in 2007
3. Renamed “Trade Promotion authority” in 2002 act
f. The Players:
i. President Obama – sole voice for negotiation (executive branch)
ii. Secretary of State – Hillary Clinton – International affairs, except trade
iii. US Trade Representative – Ron Kirk, Ambassador
iv. Congressional Committee’s on Trade issues
1. Senate Finance Committee
2. House Weighs and Means
