Constitutional Law I Outline

CONSTITUTIONAL LAW

RAMSEY

SPRING 2015

SEPARATION OF POWERS

The Executive Power

· Article II à vests the executive power in the President without qualification. The President greatly influences national policy because he is the only nationally elected official

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (found no executive power)

The President, relying on a concept of inherent powers and in his capacity as Commander-In-Chief, may not make an order that usurps the lawmaking authority of Congress on the basis of a compelling need to protect national security

Facts: During the Korean War, President Truman ordered the Secretary of Commerce to seize steel mills so that a strike would not impede the Korean War effort. The United Steel Workers were upset that they were not getting paid enough and wanted a raise. President Truman was afraid that a strike would cause the United States to run out of steel. Congress had allowed the strike with the Taft Hartley Act passed in 1947 over President Truman’s veto. The Act gave the president the power to get an injunction against such strikes but Congress had rejected an amendment to permit government seizures to avoid serious shutdowns. The Steel Companies challenged Truman’s power to do so as being without constitutional authority or prior congressional approval.

Truman’s Argument: Presidency has inherent power to make the order, which is supported by the Constitution, historical precedent and Court decisions

Steel Company’s Argument: President’s actions amount to lawmaking, which is a legislative function the Constitution has expressly confined to Congress

Justice Black (majority):

· Presidential power to seize Steel Mills can either come from a statute passed by Congress or some specific provision of the Constitution

§ No statute or act of congress authorized president’s power.

§ There is also no express constitutional power.

· Art II, Sect. I provides that the executive branch does not make the law.

· Art II, Sect. II says the executive branch takes care that the laws be faithfully executed (this, too, does not mean for them to make the law)

· Art II, Sect. II provides ‘commander in chief’ power, but this is not applicable because this is not about war, it was about seizing private property (however, it is an action taken in war).

· C/A: Cannot imply Presidential Powers relying on “theatre of war” as this definition is too expansive and could be read as giving the President more power than he was intended to have

· President should have went to Congress and recommended a law

· Legislative power of the President are limited to proposing new laws or vetoing Congressional laws

Justice Frankfurter (concurring):

§ More important to look at the gloss of history. It is an inadmissibility narrow conception of American constitutional law to confine it to the words of the constitution and to disregard the gloss which life has written upon them.

§ Congress has allowed it over the years.

· Congress’ acquiescence gives reassurance that the action was not a problem.

· “A systematic, unbroken, executive practice, long-pursued to the knowledge of the Congress and never before questioned, engaged in by the President”

Justice Jackson (concurring):

§ The Constitution is too rigid. The world has changed. We want a workable government so we don’t want something too rigid. Look at the Constitution in context.

§ What our fore fathers have envisioned is too vague. We need to find some sort of pragmatic way to deal with the question.

§ Categories:

a) Congress’ Approval: Where the president is at his most powerful

· Here, we are not in this category since Congress has not authorized seizure of the steel mill.

b) Zone of Twilight: Congress is silent on the issue.

· Not in this category either since there is a Taft-Harley Act in place.

c) Congress Disapproves: President weakest, acting explicitly against Congress

· Lowest ebb doesn’t mean anything, because nothing in the constitutional says you can’t seize steel mills.

§ Giving the president these emergency powers would upset the balance – too dangerous for the president to have. President cannot act unilaterally.

Justice Vinson (dissent)

· “Take care” financial support of war efforts

o President has the power to execute a legislative program and the Korean War is a legislative program

o Seizure is in accord with Congressional intent to support the resistance of aggression in the world and is in furtherance of his duty to execute

· Looks to history – congressional approval

· Limiting principle: terms of national emergencies

· There is a need for the president to act promptly (whereas congress cannot act quickly because of their sheer number vs one person – president). The fact that the president is active 365 days out of the year means that the president is meant to prevent such disaster.

· The president is not a messenger boy to Congress.

· FDR has done that exact thing with an aviation plant before pearl harbor

· This is a temporary action with congressional action (Taft-Harley act)

· No statute prohibiting this action.

§ C/A: Not a real emergency so not really time-critical. There is enough time to gain congress’ assent.

§ Jackson believes it is dangerous to allow the president his power – concerned with dictatorship. All the branches should be involved in the decision. Here, the “medicine is more dangerous than the disease.” Hitler’s argument, too, was “Emergency needs a strong leader.” The president is worse when he is acting unilaterally than when he is acting against congress.

o Vinson’s C/A: President is acting within Jackson’s Category 2, and if Congress wants to push him into category 3, then he can.

Dames & Moore v. Regan (found executive power is constitutional)

While the President does not have plenary power to settle claims with foreign countries using Executive Agreements, where Congress has at least acquiesced in the President’s actions, it can be implied that he has the power to do so

Facts/Issue: When Americans were taken hostage in Iran, Carter froze Iranian assets in the U.S pursuant to the IEEPA. The hostages were released two years later and the countries agreed to settle existing claims via arbitration. Dames & Moore filed suit to recover funds owed on a contract with the Government of Iran, but the order of attachment was voided by executive agreement.