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Jurisdiction Stripping Power of Congress Art. III, § 2 (Exceptions Clause): The Supreme Ct shall have appellate jdx…with such exceptions & under such regulations as Congress shall make.  Congress can strip SCOTUS of appellate jdx under most circumstances (Ex Parte McCardle) but the limitation must be neutral—Congress cannot decide the merits of a case under the guise of limiting jdx (Klein).  If the effect of withholding jdx is to prescribe a rule of decision (i.e. directly the court towards a particular outcome) it is violative of SoP.  Congress may rewrite background substantive law by passing a new statute in order to prevent court adjudication over a class of pending cases so long as they do not dictate how a court must apply pre-existing law (Robertson v. Seattle Audubon Society). Justiciability Limits The requirement of cases & controversies

or persons he determines presumption in favor of the Government's evidence.. (2) Requires Presidential consultation enemy combatants as a necessary & appropriate incident of war. The Constitution gives the President substantially greater authority with respect to foreign affairs compared to domestic relations. A generalized interest in confidentiality will not outweigh demands of due process.S. Foreign Affairs The only thing that can limit the President's actions is the Constitution Congress may check the President's actions by passing a statute. Court's role is to interpret language or C or existing statute to determine legality of President's actions. to President's exercise of power problem disappears. committed." Constitutionality must be determined on a case-by-case basis based on the imperatives of events & contemporary imponderables. Executive Agreements  Agreements between the U. effective when signed by the President and the head of the foreign country.g. Youngstown Model 2 (more formalist) President may take any action not specifically prohibted by statute or C. disrupting the balance. Pres's acts are presumptively valid.S. The President’s Power In Domestic Policy & Foreign Affairs Apply Model 4 Curtiss-Wright) Domestic v. or sensitive national security secrets (stronger). E. well as have access to counsel. a fair opportunity to be heard to Non-Detention Act: No citizen shall be imprisoned or otherwise rebut the Government’s factual assertions. E. in order to with Congress. . If domestic rights & obligations are implicated. Frequently followed in the area of foreign affairs. & foreign nations. Model 2 & Jackson tripartite framework (Dames-Moore) Presidential Power & the War on Terror Consider: Does the issue fall under the political question doctrine?  What is the power given in the constitution to that particular branch?  Whether the branch that is encroaching is taking too much power to itself so that the balance is being severely affected in such a way as to jeopardize our liberty. Only if the law enacted by Congress is unconstitutional will such action disobeying fed law  Inherent Executive Privilege  Privilege is not absolute. authorized. v. AUMF: The President is authorized to use all necessary and appropriate  Standard of Review: Hearsay evidence may be admissible. Pres's authority is in the "twilight zone. diplomatic. his authority is at its lowest. President's inherent authority extends until he infringes upon the powers of Congress or the courts. U. Nixon Model 4: (most functional) Executive has broad inherent authority that may not be restricted by Congress. If executive agreement implicates purely foreign affairs. Court will perform balancing test & weigh executive interests against judicial (SoP analysis). organizations. occurred on September 11.LIMITS ON EXECUTIVE POWER Model 1 (most formalist) No inherent presidential power. POLICY: A need to present a clear & unified face to the world  with foreign nations requires caution and unity of design. success often depends on secrecy and dispatch which President has comparable advantage of over Congress. Nixon)  Claims of executive are justiciable. Recognizes a zone of inherent executive power.  Court: the need for fair administration of justice in a criminal trial. (3) Requires the President to report to Congress within prevent them from returning to the battlefield. a particular need to protect military. (U. Curtiss-Wright Category 2: Where Congress is silent. v. a functional court will look to the degree that a branch encroaches into another. or aided the terrorist attacks that  A “neutral decision maker” may include a military tribunal.  4 Models of Executive Power Model 3 (more functional) President may act even without authorization from Congress so long as he doesn't usurp legislative responaibilities or interfere with Congress performing its duties. before a neutral decision maker. E. A formalist court will say that when a branch goes beyond its given role it is unconstitutional.g. of the factual basis for his classification. and is held in check only by the Constitution. Category 3: When Congress has explicitly or implicitly told the President not to do something. 2001.. President has plenary authority to engage in that activity without Congressional approval. even implicitly.S. President may only act where there is Constitutional or statutory authorization. treaties are effective when ratified by Senate.  Executive agreements can be used for any purpose—anything that can be done by treaty can be done by executive agreement w/o requiring Senate approval. 48 hours of committing armed forces to military action and forbids  BUT enemy combatants cannot be held indefinitely without due process. War Powers Resolution: (1) Limits when the President can send Enemy Combatants troops abroad: by authorization of Congress or in cases of national  AUMF is enough Congressional authorization for war for Executive to detain emergency created by attack.  In comparison. Apply Jackson Tripartite Framework Tripartite Framework  Category 1: When President acts pursuant to Congress authorization his authority is at its max. planned. PQD not implicated. must receive notice of the use of military force or a declaration of war. However.C. as detained by US except pursuant to an Act of Congress. and there is a force against those nations.  President’s interest: avoid disclosing information claimed to be confidential. to determine constitutionality. troops from remaining for more than 60 days without an authorization  Detainee seeking to challenge his classification as an E.g. BUT remember if Congress acquiesces.

Determining Whether Principal or Inferior Officer  Nature & extent of official’s duties. Must protect SoP & structure of federal government.  Congress may legislate only if there is bicameralism & presentment. a court will likely find a violation of SoP.  Whether they are appointed for a limited tenure.S. (Schechter/Panama) Art.” . duties. and obligations of persons outside the legislative branch in some way or are policy determinations.  Court has not invalidated an agency act as an unconstitutional delegation of legislative power in >70 years.  Whitman: “Necessary to protect the public health” sufficient. or legislative. Non-Delegation Doctrine The principle that Congress may not delegate its legislative power to administrative agencies. II § 2: President appoints with advice & consent of Senate ambassadors.  The circumstances under which the official can be removed. power. have been upheld. This is an extraordinarily easy standard to meet. some overlap between branches is good. undermining that branch’s integrity or independence? Key Qs: Has one branch… If so. Key q is whether a branch’s exercise of power Underlying view—three branches should not overlap infringes on another branch’s ability to do its job.  There are only four narrow enumerated circumstances where a single house can act: Impeachments  Trials following impeachment  Approval of Presidential appointments  Treaty Ratification  Legislative acts are things that have the purpose or effect of altering the legal rights. All delgations. (Chadha) o Doesn’t matter whether single/joint house resolution is more efficient.  A court will uphold delegations of lawmaking power so long as Congress by statute sets forth an intelligible principle to which the agency authorized to act is directed to conform. which shall consist of a Senate and House of Representatives. Death of the Non-Delegation Doctrine  When Congress delegates its legislative power it must provide criteria to guide the agency’s exercise of discretion. or in the Heads of Departments. Legislative Veto Appointment Power Art. the judgment that they are nonetheless inferior probably means that almost every federal official below Cabinet level will similarly held to be “inferior. Since SPs have fairly broad investigatory & litigation powers & may be removed only for cause. and all other [principal] offices of the U. An attempt to overturn an executive action without bicameralism (passage by both House & Senate) and presentment (to the President to sign or veto). and whether or not they include policymaking functions. even without criteria. Congress may vest the appointment of inferior Officers in the President. More flexible. • Exercised a power or performed a function that a specific clause of the © requires to be performed by another body or branch? • Aggrandized its authority by usurping power that more appropriately belongs to a coordinate branch? • Encroached upon the functions of a coordinate branch. o Dissent in Chadha invoked efficiency argument.  Whether its jurisdiction is limited by instructions from appointing court. NOTE: In Morrison Special Prosecutors considered inferior officers to whom the President need not be given appointment power. legislative veto is a useful took & has been used in several hundred statutes. Congress cannot give itself appointment power. public ministers.LIMITS ON FEDERAL LEGISLATIVE POWER Two Modes of Separation of Powers Analysis Mode 1 (Formalist) Mode 2 (Functional) Looks to the character of the action & attempts to Focuses on whether any single branch has too much identify whether it is judicial. at all.  Amount of independence & source of supervision. the Courts. judges. Anything less is an unconstitutional legislative veto. executive. I § 1: All legislative Powers herein granted shall be vested in a Congress of the United States.

o Act of removal is executive in nature—President (not his subordinates) is charged with seeing the faithful execution of laws. therefore. II powers to take care the laws be faithfully executed. Humphrey & Morrison are difficult to apply in practice.  Congress. thus usurping the legislature’s power to enact laws. Thus. § 2.FEDERAL LEGISLATIVE POWER No provision of © concerning President’s authority to remove executive officials. individuals in adjudicatory roles). o Morrison: Whether removal restrictions are of such a nature that they impede the President’s ability to perform his © duty. o Ultimately. pursuant to its Art. (PCAOB) o Impairs President’s ability to executive the laws & interferes with political accountability. analysis must be functional and contextual: are there good reasons why the office should be independent of the President?  Need to be free of threat of removal to make impartial decisions without political influence (i. the President could constitutionally remove them from office. there are some executive officials (think Cabinet members) who the President must be able to control if he is to properly flex his Art. the President should have the exclusive power of removing executive officers whom he has appointed. people do not know who is responsible for the particular decisions being made. o Art. I powers can create independent quasi-legislative & quasi-judicial agencies. o Humphrey: Drew distinction between purely executive tasks & those that are quasi-legislative or quasi-judicial. II duty to care care the laws be faithfully executed. Removal Power . II gives a general grant of power to executive which includes power of appointment.  Agencies with area-specific expertise  On the other hand. (Myers)  Congress cannot reserve for itself the power to remove an officer charged with execution of the laws. & Congress can limit removal by statute.  Even without statutory limitation on removal. Therefore.  Congress cannot insulate a federal officer from executive control through double for-cause removal authority. the President cannot remove officers where independence from executive control is desirable (Weiner).  Congress cannot participate in the removal of executive or judicial officers except through impeachment. it is important that Congress be able to insulate its members from presidential removal unless good cause for firing exists to prevent President from dismissing an official out of a desire to name appointees of his own. o Congress cannot exercise any power not delineated in © (which removal is not) but the executive can. o Congress can limit removal power to where there is good cause. STEP ONE: Is Independence From the President Desirable?  No clear test. (PCAOB)  BUT: o Congress can assign removal power to an executive official other than the President as an incident of Art II. (Morrison) o The limitation would probably be unconstitutional as an unwarranted encroachment on the President’s Art. if the president’s reason for removing officers was that they had been derelict in performing their duties.  Congress cannot completely prohibit presidential removal. power to remove is an incident of the power to appoint.e.  Executive cannot waive SoP concerns. STEP TWO: Are Congress’s Limits on Removal Constitutional?  Myers stands for the broad proposition that any congressional limits on the removal power of purely executive officers are unconstitutional. (Bowsher) o It is a violation of SoP for executive power to be exercised by a person totally insulated from presidential removal.

it presumably would be constitutional. o § 5 authority can only be used to regulate state action. it is supreme. or market prices. nor prohibited by it to the states.  Congress cannot compel states to enact or administer federal regulatory program. (N. (Scalia) Means must be "plainly adapted" to legitimate end. ships. Economic NonEconomic     Prevent Congress from exercising plenary police power. o Congress must be trying to remedy a constitutional violation. nor deny any person of life liberty or property without due process of law. No deference to rationally-based judgment of Congress Congress can regulate purely intrastate activity that is non-economic if failure to regulate would undercut broad regulatory scheme. (Heart of Atlanta) Railroads. Production & consumption of commodities.Y. § 5 grants Congress power to enforce this “by appropriate legislation. and with Tribes. 10th Amendment Powers not delegated to the U. Slippery slope—Would this give Congress too much power & destroy vertical separation of powers? Political Safeguards argument—Not worried about limiting federal authority through judicial process because political process is sufficient. (Printz)  Congress cannot impose affirmative duties on state governments. means chosen must only be "reasonably adapted" to attainment of that end under Commerce Clause. States as laboratories of experimentation.”  Test: There must be congruence & proportionality between the injury to be prevented or remedied and the means adopted to that end. U. does regulation actually involve interstate commerce? Jurisdictional hook Legislative findings If activity substantially affects commerce. etc. I. Comden)  Congress cannot single states out for differential treatment. .S. v. of the fact that Congress can act only within its enumerated powers. Ways of Challenging Federal Regulation FIRST: Check § 5 of the 14th Amendment’s congruent-proportionality test to determine whether Congress may regulate: th  14 Amendment provides that no state can abridge the privileges or immunities of such citizens. May aggregate (Wickard) Attenuated link between activity & interstate commerce won't do. but Congress may offer incentives for compliance. railways. (Reno v. Two Views 10th Amendment reserves a zone of activity to the states & 10th Amendment is “but a truism”—merely a reaffirmation exists as a separate limit on Congress’s power. there must be a choice. "Constitutionally legitimate end" = constitutional means. Need: If end is legitimate. Congress must only have a rational basis for concluding activity has an effect on interstate commerce. means selected by Congress to regulate need only be "rationally related" to ends sought. Economic as applied No aggregation Necessary & Proper + Commerce Clause Activities that affect supply.)  Government may not command state officers to administer or enforce a federal regulatory program. POLICY Facially economic v. Regulation is acceptable to keep channels free from immoral or injurious use. by the ©. etc.S. demand. Modern Commerce Clause Analysis Channels of interstate commerce Instrumentalities of interstate commerce Activities having a Substantial Affect on interstate commerce Highways. airlines. but if a statute applies generally to both state & private actors.  Where federal legislation exists. § 8: Congress shall have power to regulate commerce with foreign nations. BUT Congress's intent in regulating not important. are reserved to the states respectively or to the people. and among the several states.COMMERCE CLAUSE POWER Art. trucks. not individual conduct.