A.

FOREIGN AFFAIRS OF THE EXECUTIVE

1. Foreign Affairs Powers in Text of Constitution
a) Congress: declare war; regulate and raise armies and navies; foreign commerce clause; immigration and
naturalization; domestic enforcement to international law; define and punish offenses against Law of
Nations; spending and taxing power.
b) President: Commander in Chief and receive ambassadors.
c) Concurrent Treaty Power
2. Inherent Powers in Foreign Affairs
a) Executive Agreements between President and head of another nation.
b) President can recognize/refuse to recognize foreign nations.
c) Any decision related to foreign policy--allying/not allying.
3. US v. Curtiss-Wright Corp.
a) Issue: Whether Joint Resolution of Congress and proclamation issued by President authorizing President
to prohibit sale of arms if he found it would contribute to establishing peace in the region is a proper use
of Executive power.
b) Holding: This was proper. Executive is sole organ of foreign affairs. Executive is acting with
Congressional Approval here and has broad reigns in foreign affairs. Court made clear that Executive had
its own power to act in prohibiting gun sales.
c) Significance: Establishes that foreign affairs is an inherent power, that does not need to be seen in C,
the terms and structure of it limit the power. Not literally true that Executive is sole organ of foreign affairs,
but court tends to see it that way.
4. Medellin v. Texas
a) Facts: Mexican citizen sentenced to death in US, argued he was never informed his right to counsel
pursuant to Vienna Convention and ICJ. Bush issued executive order to reopen judgments.
b) Holding: The Convention was not self-executing and therefore not binding on state or federal courts as a
matter of domestic law. It needs Congressional approval to have effect, therefore the executive order
trying to give treaty domestic effect falls under Congressional Disapproval because President was
aggrandizing Congress role.
5. War Powers
a) What is not war? (1) Civil war and (2) Repelling a sudden attack. Executive has power to respond
without congressional approval.
(1) Court has taken itself out of debate as to what constitutes war.
b) War Powers Resolution: President has power to introduce armed forces into hostilities or where
involvement in hostilities is likely. President must consult with Congress in every possible instance and
then consult regularly. Within 60 days, President must terminate use of armed forces unless Congress
has declared war or extended period.
(1) Executive can argue aggrandizement and encroachment.
(2) Congress can argue it promotes SOP by preserving balance of power.
6. Treaty Power: Treaty can be anything regarding national concern. Congress can implement using N&P
clause even if not able to use any other power.
a) Executive agreements vs. treaties: Senate has role in treaties.
7. Hamdi v. Rumsfeld
a) Issues: Legality of the Governments detention of US citizen on US soil as an enemy combatant and the
process that is constitutionally owed to one who seeks to challenge his classification as such. Do citizens
have a constitutional right to challenge that classification?
b) Holding: Although Congress authorized the detention of combatants in the narrow circumstances here,
due process demands that a citizen held in the US as an enemy combatant be given: (1) notice; (2) a
meaningful opportunity to contest the factual basis for the detention (3) before a neutral decision maker.
(Congressional Approval Case).
c) Balancing test: Balance individual interest in liberty and governments need to detain combatants and
likelihood of erroneous deprivation of liberty. Presumption that government is correct is constitutional so
long as that presumption is rebuttable.
d) Significance: After case, President released Hamdi, suggests that court was correct to assert some sort
of role here to protect individual liberty.
8. Rasul: non-citizen enemy combatants have right to file habeas petitions and have that status reviewed.
Statutory interpretation case.
9. After this, President established Combatant Status Review Tribunals. Detainee Treatment Act also passed
saying no statutory habeas. Also limited judicial review of CSRT.
10. Hamdan v. Rumsfeld
1
a) Issue 1: Evaluate military commission system set up years before.
b) Held: Military commission system illegal because violated UCMJ and Geneva Conventions.
Congressional Disapproval. Court trying to preserve role for Congress.
c) Issue 2: Interpretation of DTA (take away habeas remedies for non-citizens)
d) Held: Used Constitutional avoidance to interpret statute in very narrow way--only prospective effect.
Anyone detained after will be able to challenge DTA.
11. Military Commissions Act (MCA): no statutory habeas for all cases pending and future. Said court
misinterpreted statute.
12. Boumediene v. Bush
a) Holding: DTA unconstitutionally restricted habeas and the limited review in Court of Appeals provided for
in the Act was not adequate substitute for habeas. There is a basic C right to federal habeas, at its core it
allows to challenge executive detention and applies to all citizens or non and prisoners in Guantanamo.
13. Torture and wiretapping: President probably not going to have unilateral power, Congress may have a role.
B. LEGISLATIVE AUTHORITY TO DELEGATE POWER TO THE EXECUTIVE
1. Delegation: When a branch gives its power to another it throws off the balance of power even though doing it
voluntarily. Generally, this is not allowed.
2. Non-Delegation Rule: No branch can delegate to another branch its functions. Congress cannot delegate
law-making authority.
a) Purpose : accountability issues. Can promote efficiency and expertise--better policy making.
b) TEST: Congress is allowed to legislate big picture policy in broad terms and give others power to
implement the terms with policy making AS LONG AS Congress lays down intelligible principles to
delegatee to guide their discretion.
c) Ex. Touby case: Congress passed controlled substance act but delegated power to AG to add more
drugs to list. Delegation was okay because there were intelligible principles.
d) Ex. Congress passes law that President can take out something that travels in commerce if he thinks it is
detrimental to health. This is okay because Congress is still making the big picture policy decision here, it
is just allowing President to decide what.
e) Not used that often. Courts have only invalidated 2 statutes as improper delegations (none since 30s).
Applies intelligible principle rules leniently.
f) If Congress delegates what looks like policy making, but E has general power in that area too, court will
not be so concerned with intelligible principles. (Loving v. US)
3. Clinton v. City of NY
a) Holding: Line Item Veto Act, which authorized President to cancel in whole any items of new spending or
any limited tax benefit invalidated.
b) Rationale: Congress did make big picture policy decision before delegating because there were
standards President had to find before exercising the veto. However, the statute authorized the President
to amend previously enacted legislation by repealing a portion of it, which is not authorized by the C. Acts
cancellation provision violates Art. I, Sec. 7 (bicameralism and presentment provisions for legislation).
c) Significance: Not decided as a non-delegation case even though it looks like one. Court is not going to
like when Congress is simply attempting to give away a hard decision.
C. LEGISLATIVE AUTHORITY TO CHECK THE EXERCISE OF DELEGATED POWER
1. Ways Congress can Exercise Control over Delegated Authority
a) Spending Power : If Congress delegates and does not like decisions, it could reduce spending.
b) New Law: adding more guidance for exercising delegated power.
c) Sunset Legislation: provides agency authority will terminate after a certain period unless Congress
reenacts the substantive statute.
d) Appropriations Rider : When Congress spends money it can put additional provisions of how to exercise
delegated power.
e) Legislative Veto : opportunity for one house to look over shoulder of what delegatee is doing and if they
dont like it, they can reject it. UNCONSTITUTIONAL--Chadha (aggrandizement)
2. INS v. Chadha
a) Facts: Chadhas visa expired. Immigration judge ordered that his deportation be suspended since he met
requirements of statute. Congress delegated power to AG to enforce the law. Congress had power under
statute to veto AGs determination that Chadha not be deported. House passed a resolution opposing the
granting of six aliens permanent residence including Chadha. Not submitted to Senate or President.
Judge reopened and deported Chadha.
b) Issue: Whether action of one house under the statute violates structure of the C. Court looks at text and
whether action is legislative.
2
c) Holding: Congressional veto provision unconstitutional. One house was legislating, but to do this, it must
go through bicameralism and presentment. This is not one of the rare cases where House may act alone.
Without this legislation, Congress could have deported Chadha by passing legislation to deport him
(private bill). Violates SOP.
d) Rule: One house of Congress reviewing and rejecting agency conduct is unconstitutional (legislative
veto).
3. Myers v. US
a) Issue: Whether Congress attempt by statute to limit Presidents removal power of Postmaster General by
imposing advice and consent of Senate requirement is constitutional.
b) Holding: Limitation of Congress having to approve removal power is unconstitutional. President has
power of removing executive officials because the act of removal itself is executive in nature. He has to
have complete control of them since they are executing his decisions. If the Senate interferes,
accountability and aggrandizement issues arise.
4. Humphreys Executor v. US
a) Facts: Statute providing that members of FTC could be removed by President for inefficiency, neglect of
duty, or malfeasance in office.
b) Holding: Provision is okay. Distinguished from Myer: Post office was purely executive; Court
characterized FTC as quasi-legislative, so no need for President to have super tight oversight.
c) Rule: Congress is allowed to limit Presidents removal power by putting in a for-cause provision.
5. Wiener v. US: War Claims Commission. Court said that judiciary allowed to imply a for cause provision in the
removal of WCC because war claims award determinations are based on merit, not politics. So if President
does not like what they are doing, if he has full removal power he could just remove commissioners at will.
a) Rule: If need for independence from President, Judiciary can imply a for cause provision for removal.
6. Bowsher v. Synar
a) Facts: Comptroller General vested with authority to investigate ll matters relating to receipt and
disbursement of public funds. Nominated by President and recommended by Congress. Congressional
committee would estimate amount of federal deficit for next year and calculate budget reductions to report
to Comptroller who would prepare a report for President, who had to mandate any spending reductions
that became final unless Congress legislated otherwise.
b) Holding: Act unconstitutional. C did not contemplate an active role for Congress in the supervision of
officers charged with the execution of the laws it enacts. Because Congress had retained removal
authority over the Comptroller General, he may not be entrusted with Executive powers.
c) Rule: Congress may NEVER limit the Presidents removal power over someone who does executive work
(even if they only do it in part and they are in the legislative branch) by giving removal power to itself. Only
exception is impeachment.
7. Morrison v. Olson
a) Facts: Act has AG investigate and if appropriate prosecute certain high ranking government officials
(mostly Executive). Reports to special court and he appoints independent counsel that can be removed
from office only by AG for cause or by impeachment.
b) Issues: Does this provision restricting AGs power to remove interfere with Presidents exercise of C
functions? Does the act violate SOP by reducing Presidents ability to control prosecutorial powers
wielded by independent counsel?
c) Holding: Provisions do not violate Appointments Clause or the limits of Art. III, nor do they impermissible
interfere with Presidents authority of SOP.
d) Significance: Here we are dealing with a purely executive power, but Congress is limiting Presidents
removal power to someone other than the President and its for cause. The need for independence from
President is here. IC is investigating executive officials.
8. Free Enterprise Fund v. Public Co Accounting Oversight
a) Issue: May the President be restricted in his ability to remove a principal officer, who is in turn restricted
in his ability to remove an inferior officer, even though that inferior officer determines the policy and
enforces the laws of the US?
b) Rule: Congress cannot put more than one level of tenure protection between President and anyone who
does executive work.
c) Steps to look for to apply:
(1) Executive officer with a superior who is not the President
(2) Individual is an executive officer performing significant executive work
(3) Executive officer protected by tenure protection/for cause provision
(4) Boss also has for cause provision
3
9. General Rule: President has the power to remove executive officials, but Congress may limit removal power
if it is an office where independence from the President would be desirable, however, Congress cannot
completely prohibit all removal, and it cannot give removal power to itself.
10. Removal Test
a) purely executive v. quasi legislative/judicial
b) Need for Independence
c) Limit on Removal may not interfere with/unduly trammel executive functions.
d) OK limits: cause; give to another executive official; judiciary can imply a for cause provision if need for
independence.
11. Appointments
a) President has power to appoint Ambassadors, Public Ministers, Consuls, SC, and officers of US with
advice and consent of Senate.
(1) Officers of US: anyone exercising significant authority under US law.
(a) Principle: appointed by President with advice and consent. (Cabinet members)
(b) Inferior: key factor--supervised by a principle officer; limited nature of job; and limited term (if
fixed term, probably principle officer). (US attorneys, special prosecutors, employees)
b) President/courts/department heads can appoint inferior officers by himself.
c) Inter-branch appointments are permissible as long as no aggrandizement. (Morrison).
4