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University of South Carolina School of Law
Black, Derek W.

Constitutional Law Outline

Prof. Black – Spring 2014

· Power and Rights

o Power (and its limits)

§ Executive

· Main powers of the President:

o Execution of laws

§ Carries out laws to make sure that they are done faithfully

o Commander in Chief

§ Directs and leads the armed forces; may not declare war—only congress has the power to declare war.

o Treaties and Foreign Affairs

§ Has the power to make treatiesà must then get approval. Has the power to enter into Executive agreementsàno approval needed. Appoints ambassadors, and controls foreign policy.

o Appointment of Federal Officials

o Pardons

o Vetoes

§ May veto any law passed by both houses, but the veto can be overridden by a 2/3 majority of each house. If president doesn’t veto within 10 days after receiving the bill, it becomes law, unless congress has adjourned by the 10th day after it sent him the bill, known as a “pocket veto.”

· Inherent Executive Power- The ability of the President to act without express constitutional or statutory authority. Article II states: “The executive power shall be vested in a President of the United States of America. Inherent power is power that comes from the nature of the office. Powers that the president has that are not enumerated.

o Domestic: Four different approaches from Youngstown Sheet & Tube Co. v. Sawyer—leading case on the ability of the president to act without express constitutional or statutory authority. Facts: Steelworkers union was going to strike, so Pres. Truman issued an executive order, which directed the secretary of commerce to take over the steel mills and keep them running. Truman though the strike could harm national defense. Congress never said anything. Sup.Ct. held that the taking was unconstitutional. 4 Diff. Approaches:

§ (1) No Inherent Presidential Power

· There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority.

o In this case, unconstitutional because not expressed in constitution or in a statute that authorized the president to take the mills like he did.

o This approach is premised on the belief that inherent authority is inconsistent with a written Constitution establishing a government of limited powers

§ (2) Interstitial Executive Power

· The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch.

· In this case, argued it was unconstitutional because the president was forcing the expenditure to maintain the steel and thus usurping the spending power of congress.

§ (3) Legislative Accountability**(This is the one on the exam)

· The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution.

o Justice Jackson Model**: (1) If congress says he can do it=100%; (2) If congress hasn’t said Y or N=president can maybe cross over into some of congress’s power (twilight zone); and (3) if congress says No = using congressional power is off limits (this is the lowest ebb and his actions will only be allowed if the law that Congress enacted is found to be unconstitutional).

§ Jackson found it unconstitutional because Congress had denied the president the authority to seize industries. Dissent agreed with this approach but disagreed about him being said he couldn’t because congress said nothing when they took over the mill.

§ (4) Broad Inherent Authority

· The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated.

o This approach makes laws restricting executive power are unconstitutional as impermissibly restricting presidential powers.

o This has been used more recently. Including lately after 9/11 to eavesdrop on people by the Bush Administration.

o Foreign:

§ 1972 Senate Committee: President has no inherent power. Only the power that is enumeratedàold rule.

§ US v. Curtiss-Wright Export Co.: Court states that the president does have inherent power because the President is the sole representative and because he is in a better position of knowledge.

· Also foreign power was a power that was never given to the states.

· This case is still cited as authority for broad inherent powers presidential power when it comes to foreign policy. “In this vast external realm, with its important, complicated, delicate, and manifold problems, the President alone has the power to speak and listen as a representative of the nation.”

o There have been criticisms with this case, some say that the framers wanted there to be a check for every action and limited federal powers.

§ Two differences between foreign powers and domestic affairs:

· Treaties: An agreement between the US and a foreign country that is negotiated by the president and then is effective when ratified by the Senate.

o If there is a conflict between a treaty and a federal statute, the one that was created last controls.

o State laws that conflict with treaties are invalid.

o Treaties are invalid if they conflict with the constitution, which is the supreme law of the land and nothing including a treaty can violate it.

· An executive agreement—an agreement between the US and a foreign country that is effective when signed by the president and the head of the other government.

o They may be used for any purpose. Anything that can be done be a treaty can be done by an executive agreement.

§ The Supreme Court has never invalidated an executive agreement for undermining Congress’s role in ratifying treaties.

o Constitution does not mention executive agreements, but they are held to be constitutional. (However, they cannot override a prior act of Congress).

o Dames & Moore v. Regan: dealt with the Iran hostages and Carter signed an executive order to unfreeze the Iranian assets and ended all suits against Iran in the United States. Suit was brought, and the court held: that the executive agreement was constitutional since it was authorized by federal statute.

· War Powers: The Constitution gives both Congress and the President special powers with respect to war.

o The president has broad powers as commander-in-chief to use American troops in foreign countries.

§ Not once in American history has this use been declared unconstitutional.

o What constitutes a declaration of war? How may Congress limit the president?

§ Unclear the answer to these questions. C

the appointment power to itself or to its officers.

· Buckley v. Valeo: the court held unconstitutional a federal law that empowered the speaker of the House of Representatives and the president pro tempore of the Senate to appoint four of the six members of the FEC.

o Appointment limited to the three above, and clearly the speaker of the house and the president pro tempore are not one of the three.

§ Morrison v. Olsen: here dealt with the independent counsel and whether Congress could appoint the position.

o Removal: President has inherent power to remove his officers, but Congress can limit them. Principle: In general, the president may remove executive officials unless removal is limited by statute.

§ Unless removal is limited by federal statute, the president can fire any executive branch official. Congress can limit if both of two requirements are met:

· (1) In must be office where independence from the president is desirable.

o Ex. Congress can’t limit removal of the president’s cabinet, but they could limit removal of the special prosecutor/independent counsel.

· (2) The statute must not prohibit removal—it can limit removal to where there is good cause.

o Even for an officer where independence is desired, they can only limit the removal for good cause.

§ Myers v. United States (1926): upheld the president’s power to remove the postmaster general because they were both in the executive. Principle: Stated that “the power to remove…is an incident of the power to appoint”à Power to remove purely executive officers he has appointed by and with the Advice and Consent of the Senate.

§ Humphreys Executor v. United States: Here, president didn’t have the power to remove the Federal Trade Commissioner. Person wasn’t solely in the executive, so the president doesn’t have the power to remove. Principle: Here, Court said that officers in “quasi-legislative” or “quasi-judicial” positions are different and that Congress may limit their removal except for cause in the meantime. (Ex. Distinction between cabinet officials (postmaster) and independent regulatory agencies (FTC or SECàlatter Congress can limit removal for just cause.)

§ Bowsher v. Synar: Went further than Humphreys Principle: held that even without a statutory limit on removal, the president could not remove executive officials where independence from the president is desirable.

§ Morrison v. Olson: Couldn’t get rid of the special prosecutor unless for good cause. Only have the power to remove the executive officers, but Congress can put limits on it such as for good cause.

§ For Exam: Two questions to ask for these types of questions: