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Separation of Powers and Checks and Balances at the National Level

! Blended system of government
- Appropriate $ from Treasury
- Legislate
- Declare war
- Raise armies & navies
- Create lower federal courts

- Execute law including
criminal proceedings
- Pardon
- Command armies

Prez / Congress
- Veto
- Admin. Rulemaking
- Senate consent to treaties
- Senate conf. of ambassadors
and principal exec. officers

Cong. against Prez.

Purse $$
No dual service /
No punishment for
speech and debate
No arrest while in
Veto override

Congress / Judiciary
- Trial of impeached officers
- Statutory interpretation
- Judicial review?

- Imprison on criminal
- Judicial review

Judiciary / Prez
- Interpretation of treaties and
international law
- Admin. Agency adjudication


Cong. Against
Judiciary against Cong. and
Strip or alter jdx
Salary protection
Lower fed ct. control Tenure in office
Refuse to confirm

Prez. against
Tenure in office
Salary protection
Not elected by

A. Presidential Action Affecting Congressional Powers

1. Domestic Lawmaking scope of inherent Presidential power without express constitutional
or statutory authority.
" Youngstown sheet & Tube Co. v. Sawyer, (1952): Truman seized steel mills through Executive
Order when workers threatened to strike in the interest of keeping them running during the
Korean War. Suit against Secretary of Commerce (Marbury precedent)
Where would President get authority?: Vesting Cl., Take Care Cl., CiC, emergency pwrs,
Presidential Action Without Express Authority

No inherent power

Interstitial power

Broad inherent

Blacks majority Truman has no

authority to seize mills, given to
other branch (formalist)
doctrinaire textualism
Frankfurter: Const. is a
framework, not a detailed code
Douglas concurrence Truman
usurping Congress spending
power by forcing 5th am. takings
compensation for mills
Jackson concurrence zones of
authority; here Congress rejecting
giving Prez. authority to seize
Vinson dissent prez subject only
to the people; mass of
legislation makes flexibility a
practical necessity

Inherent power inconsistent with

written doc. establishing limited
Inherent authority unless
president interferes with
functioning of another branch, or
usurps power

President may take any action not

prohibited by Const. or a statute
Broad authority as long as

Jacksons Zones of Presidential Authority ! McCulloch, gov. should be flexible & adaptable
Zone 1 Maximum Authority Express or implied
Dames & Moore v. Regan
authorization of Congress
(Iran hostage); foreign affairs;
Curtiss-Wright; Korematsu;
Zone 2 Ad hoc
Zone of twilight when no grant Ex parte Merryman
or denial of authority;
concurrent authority with
Zone 3 Only allowed if
Lowest ebb of authority, Prez. Zivotofsky v. Kerry
statute is unconst.
acts contrary to express or
implied will of Congress
2. Executive Agreements treaty with no approval by Senate
" Dames & Moore v. Regan, (1981): Carter released Iranian assets and ended suits against Iran
in exchange for US hostages. Presumption to broad power in foreign affairs.
Functional ! president is chief diplomat, Jackson Category 1
3. Recognizing Foreign Sovereigns
" Zivotofsky v. Kerry, (2015): President has sole power to recognize sovereigns from Art II
power receive ambassadors. Congress may not require the State Department to indicate on
passports that Jerusalem is part of Israel contentious issue in Middle East conflict. Jackson
Category 3, expansion of Curtiss-Wright.
4. Foreign Affairs Powers

Curtiss-Wright Criteria for Presidential Action (Sutherland)

# DOMESTIC AFFAIRS: government can exercise only powers specifically
enumerated in the constitution and those implied as necessary and proper to
carry into effect the enumerated powers.
# FOREIGN AFFAIRS: president possesses much greater inherent powers than
with domestic affairs
o Problems are delicate ! president needs the power to represent the nation
" Curtiss-Wright (1936): Congress enacted law empowering President to create arms embargo
on South America because of revolutionary conflict. Jackson Zone 1. Nondelegation doctrine
doesnt apply to foreign affairs.
- Rationale: domestic authority possessed by states before ratification; they bestowed limited
powers on fed. gov.; foreign policy power is inherent in the fed. gov. by virtue of its sovereignty.
- Criticisms: inconsistent with written Const., non-originalist.
- Doesnt this commandeer executives to carry out law?
5. Individual Rights and War

Ex Parte Merryman Taney, racist Chief Justice

# Facts: militias tried to attack D.C. while Congress was not in session destroyed bridges.
President authorized the general chief of the army to suspend habeas corpus.
# Suspension Clause: privilege of writ shall not be suspended unless when in cases of
rebellion or invasion the public safety may require it.
o !: Does not specify who can execute this, but placed in Art I (Congress)
# The president cannot suspend the privilege of the writ of habeas corpus

Argument for Placement of Power in

(Merryman Majority)
# Suspension Clause does not reference
the President
# Completely domestic issue, not
permitted to have sweeping foreign
policy presidential powers
# Suspension Clause is in Art. I, which
primarily discusses congressional
# Legislature should be the one in charge
of altering individual rights

Argument for Placement of Power in

(Lincolns Response)
# Because of the uprising, many laws
were not being faithfully executed. Is
the president supposed to execute one
(habeas corpus) at the expense of all of
the others?
# President has a lot of power that can be
translated here (CiC, oath to protect
constitution, etc.)

Korematsu v. United States

# Upholds the relocation of Japanese-Americans during WWII. Korematsu was a U.S.
citizen and the president issued an executive order allowing the military to exclude
whomever they see fit.

# Jackson Zone 1 because there was a statute by Congress allowing the president to act !
presidential power was at the height
" Hamdi v. Rumsfeld: Fed. gov. has authority to hold an American citizen as enemy
combatant when apprehended in foreign country. Owed due process of habeus corpus review.
OConnor plurality found Authorization for Use of Military Force (Congress authorizes
use of all necessary and appropriate force post-9/11) meets the Non-Detention Acts
which requires an act of Congress to validate detention of US citizen.
2nd issue: Hamdi is owed due process and fed. ct. must hear his habeus corpus petition.
To deny habeus corpus would be to consolidate liberty-infringing power in Executive;
violates SoP
Stevens + Scalia; Souter + RBG; OC+3; Thomas
B. Congressional Action Affecting Executive Powers
!Non-delegation, legislative veto both invalidated. What checks on agency action are left?
- Analyze character of government action
- Has one branch aggrandized itself by
wielding power uniquely given to another
- Usually does not uphold challenged branch
- Chadha; Clinton v. NY

- Has one branch prevented another from
accomplishing its constitutionally assigned
- Balance harm against benefit if action has
merely disrupted non-essential functions
- Usually upholds challenged branch
- Yakus

1. Non-Delegation Doctrine
# Definition: principle that Congress may not delegate its legislative power to
administrative agencies
o Founded in separation of powers
o Based on democratic idea ! giving broad powers to unelected individuals
# !: This standard has no teeth
o Yakus: Congress only has to set objective even if broad standard
o Curtiss-Wright: Congress delegates power to Prez
Criteria for Delegation
1) Congress must have stated intelligible principle to guide agency discretion (Whitman v.
American Trucking Association)
2) Congress must also state the objective, means of obtaining the objective, and the standard of
obtaining the objective
2. Legislative and Line Item Vetoes
! Congress created legislative veto in the 1930s to check actions of administrative agencies
overturn agency decision with resolution of one or both house of Congress. Unconstitutional in

" INS v. Chadha, (1983): Burger legislative veto unconstitutional Congress may legislate
only through bicameralism and presentment. Congress power ends after it enacts legislation.
Like Youngstown formalist opinion
INS had granted Chadha a stay of deportation; House Subcommittee vetoed
- White dissent: Functionalist opinion leg. Veto needed as check on broad delegation of
legislative power; majority invalidated more provisions than the Ct. had ever cumulatively
" Clinton v. N, (1998): Stevens line item veto statute, which enabled President to cancel
parts of appropriations bills while allowing the rest to go into effect, unconstitutional.
Breyer, OConnor, Scalia dissent: Functionalist, practical need for line-item veto - $4
million budget during founding, $1.5 trillion budget now.
3. Appointment and Removal
Constitutional Basis for Appointment and Removal
Appointment power: Art II 2 President alone can nominate ambassadors, Ct., and officers of
US; Congress can vest appointment of inferior officers in prez, fed cts., or heads of departments.
Removal power: Never expressly granted
! Doctrinal Qs: should Ct. use formalist or functionalist approach?
! SoP: What is the proper balance between checking the prez to ensure accountability, and
giving president discretion necessary to govern?
** Important because of theory of unitary executive (Printz)
Removal Power Analysis Two-step
! Is the office one in which independence from president is desirable?
Functional inquiry
Executive v. quasi-legislative or quasi-judicial tasks (Humphreys Executor)
Whether restrictions impede Prezs ability to fulfill const. duty (Morrison v. Olsen)
! Are Congress limits on removal constitutional?
Cannot give removal power to itself (Bowsher v. Synar)
Cannot prescribe a double layer of insulation where inferior officers can only be removed
for just cause by officers who can only be removed by the president for just cause (Free
Enterprise Fund v. PCAOB)
" Myers v. US, (1926): Taft: Congressional limits on executive removal power are unconst.
because ability to control personnel is central to executive power.
Unitary executive (Printz)
Power to remove is an incident of the power to appoint
Functionalist approach
" Humphreys Executor v. US, (1935): Congress can limit removal of an FTC commissioner
distinction between purely executive positions and regulatory agency positions.
Functionalist: Congressionally created agencies should be insulated from political control

Formalist: Difficult decision no authority for executive agencies that operate outside
Prezs control

" Buckley v. Valeo, (1976): Congress cannot directly appoint Commissioners because they are
not prez, heads of dpts, or lower fed. cts. as required in Art II for inferior officer appointments.

Bowsher v. Synar, (1986): Congress cannot give itself power to remove executive officials.
Head of Congressional agency General Accounting Office given power to impose budget
cuts; unconst. delegation to legis. official of executive power, which cannot be exercised
by a person insulated from Prez. removal
Also Chadha problem, would vest GAO with power to change approved budget, and
Congress power needs to end after enactment of legislation thru bicameralism and

" Morrison v. Olsen, (1988): Upheld limits on Presidents ability to remove independent
counsel after Watergate. AG (exec) would have to file report with judges who made appointment
and with H+S Judiciary Committees.
AG is Myers core executive position; this sets up layer of insulation btw. Prez and
independent counsel
" Free Enterprise Fund v. PCAOB, (2010): two layers of good cause insulation is
unconstitutional, interferes with unitary executive and Take care clause (Roberts + 4)
Oversight Board appointed by SEC, who can only be removed for good cause
Breyer dissent too formalist, desirable to have independent Board
Recess Appointment Power
" NRLB v. Canning, (2014): pro forma session appointments by Prez are unconstitutional
because the pro form sessions are not recesses of 10 days or longer (Art II 2); maj. relies on
historical practice (functionalist, non-originalist)
4. Judicial Control of the Presidency prosecution, subpoena, suit, impeachment
! SoP: Ct. largely defends presidency from Congressional intrusion Chadha, Myers, Bowsher
(not Morrison)
Ct. has different attitude when judicial action is questions functionalist and formalist
Executive Privilege
# Definition: ability of the president to keep secret conversations
o Not mentioned in the constitution but thought to derive from history
o Balancing test: very sensitive information
$ Necessary for president to receive sincere, candid service - otherwise
president would always be cautious about what to say due to potential
$ Also crucial to protect national security: confidential sources/information
must not be revealed

President has qualified executive privilege.

# United States v. Nixon, 1974 [contrast with Youngstown which finds no inherent prez.
o Special prosecutor subpoenaed tapes of Nixons private recordings in his office.
Nixon refused and got him fired by the AG. Second special prosecutor subpoenas
the tapes and it goes to court.
o President immunity is not a non-justiciable political question, it is an intra-branch
o It is the role of the court to decide whether the president has executive privilege,
and if so, its scope. Duty of the judiciary to say what the law is (Marbury v.
o Executive privilege exists but it is qualified, it must yield when there are
important countervailing forces
United States v. Nixon Balancing Test
If the executive privilege interferes with the ability of the judiciary to perform its constitutional
function ! executive privilege will not work
# Need for evidence at a criminal trial [5+6 Am.] > executive privilege (United States v.
President has absolute immunity from being sued for actions that happened while in office, but
not for actions that occurred before entering office or after leaving office.
# Nixon v. Fitzgerald: a president, or ex-president, has absolute immunity from being sued
for money damages that occurred while in office.
o Presidents unique status justify absolute immunity ! suits will be a huge
distraction and there will be many of them
o Other checks against the president: impeachment, political pressure, etc.
# Clinton v. Jones: president does not have immunity from suits for conduct that allegedly
occurred prior to his taking office or after he leaves office.
o Clinton sued for sexual harassment for conduct that occurred when he was
Governor of AK.
o Immunity is for the discretion of the officeholder, so not need to protect this
o !: Court seems not to have cared about it being a distraction