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Jurisdiction Stripping Power of Congress Art. III, 2 (Exceptions Clause): The Supreme Ct shall have appellate jdxwith 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 neutralCongress 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


Model 1 (most formalist)
No inherent presidential power; President may only act where there is Constitutional or statutory authorization. Court's role is to interpret language or C or existing statute to determine legality of President's actions. E.g. Youngstown

Model 2 (more formalist)

President may take any action not specifically prohibted by statute or C. Apply Jackson Tripartite Framework

Tripartite Framework Category 1: When President acts pursuant to Congress authorization his authority is at its max. Pres's acts are presumptively valid.

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. Recognizes a zone of inherent executive power; President's inherent authority extends until he infringes upon the powers of Congress or the courts. E.g. U.S. v. Nixon

Model 4: (most functional)

Executive has broad inherent authority that may not be restricted by Congress, and is held in check only by the Constitution. Frequently followed in the area of foreign affairs. E.g. Curtiss-Wright

Category 2: Where Congress is silent, Pres's authority is in the "twilight zone." Constitutionality must be determined on a case-by-case basis based on the imperatives of events & contemporary imponderables. Category 3: When Congress has explicitly or implicitly told the President not to do something, his authority is at its lowest. Only if the law enacted by Congress is unconstitutional will such action disobeying fed law

Inherent Executive Privilege Privilege is not absolute; Court will perform balancing test & weigh executive interests against judicial (SoP analysis). Presidents interest: avoid disclosing information claimed to be confidential; a particular need to protect military, diplomatic, or sensitive national security secrets (stronger). Court: the need for fair administration of justice in a criminal trial. A generalized interest in confidentiality will not outweigh demands of due process. (U.S. v. Nixon) Claims of executive are justiciable, PQD not implicated.

Executive Agreements Agreements between the U.S. & foreign nations, effective when signed by the President and the head of the foreign country. In comparison, treaties are effective when ratified by Senate. Executive agreements can be used for any purposeanything that can be done by treaty can be done by executive agreement w/o requiring Senate approval.

The Constitution gives the President substantially greater authority with respect to foreign affairs compared to domestic relations. 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.
If executive agreement implicates purely foreign affairs, President has plenary authority to engage in that activity without Congressional approval.

The Presidents Power In Domestic Policy & Foreign Affairs

Apply Model 4 Curtiss-Wright)

Domestic v. 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. BUT remember if Congress acquiesces, even implicitly, to President's exercise of power problem disappears.

If domestic rights & obligations are implicated...

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. A formalist court will say that when a branch goes beyond its given role it is unconstitutional. However, a functional court will look to the degree that a branch encroaches into another, disrupting the balance, to determine constitutionality. 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. (2) Requires Presidential consultation enemy combatants as a necessary & appropriate incident of war, in order to with Congress. (3) Requires the President to report to Congress within prevent them from returning to the battlefield. 48 hours of committing armed forces to military action and forbids BUT enemy combatants cannot be held indefinitely without due process. troops from remaining for more than 60 days without an authorization Detainee seeking to challenge his classification as an E.C. must receive notice of the use of military force or a declaration of war. of the factual basis for his classification, a fair opportunity to be heard to Non-Detention Act: No citizen shall be imprisoned or otherwise rebut the Governments factual assertions, before a neutral decision maker, as detained by US except pursuant to an Act of Congress. well as have access to counsel. AUMF: The President is authorized to use all necessary and appropriate Standard of Review: Hearsay evidence may be admissible, and there is a force against those nations, organizations, or persons he determines presumption in favor of the Government's evidence. planned, authorized, committed, or aided the terrorist attacks that A neutral decision maker may include a military tribunal. occurred on September 11, 2001.


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, executive, or legislative. power. Key q is whether a branchs exercise of power Underlying viewthree branches should not overlap infringes on another branchs ability to do its job. at all. More flexible; some overlap between branches is good.
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, undermining that branchs integrity or independence?

Key Qs: Has one branch

If so, a court will likely find a violation of SoP.

Non-Delegation Doctrine
The principle that Congress may not delegate its legislative power to administrative agencies. (Schechter/Panama) Art. I 1: All legislative Powers herein granted shall be vested in a Congress of the United States, 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 agencys exercise of discretion. 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. This is an extraordinarily easy standard to meet. All delgations, even without criteria, have been upheld. Whitman: Necessary to protect the public health sufficient. Court has not invalidated an agency act as an unconstitutional delegation of legislative power in >70 years. An attempt to overturn an executive action without bicameralism (passage by both House & Senate) and presentment (to the President to sign or veto). Congress may legislate only if there is bicameralism & presentment. Anything less is an unconstitutional legislative veto. (Chadha) o Doesnt matter whether single/joint house resolution is more efficient. Must protect SoP & structure of federal government. o Dissent in Chadha invoked efficiency argument; legislative veto is a useful took & has been used in several hundred statutes. 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, duties, and obligations of persons outside the legislative branch in some way or are policy determinations.

Legislative Veto

Appointment Power
Art. II 2: President appoints with advice & consent of Senate ambassadors, public ministers, judges, and all other [principal] offices of the U.S. Congress may vest the appointment of inferior Officers in the President, the Courts, or in the Heads of Departments. Congress cannot give itself appointment power.

Determining Whether Principal or Inferior Officer Nature & extent of officials duties, and whether or not they include policymaking functions. Amount of independence & source of supervision. The circumstances under which the official can be removed. Whether they are appointed for a limited tenure. 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. Since SPs have fairly broad investigatory & litigation powers & may be removed only for cause, the judgment that they are nonetheless inferior probably means that almost every federal official below Cabinet level will similarly held to be inferior.


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

Removal Power


Art. I, 8: Congress shall have power to regulate commerce with foreign nations, and among the several states, and with Tribes. Ways of Challenging Federal Regulation FIRST: Check 5 of the 14th Amendments 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, nor deny any person of life liberty or property without due process of law. 5 grants Congress power to enforce this by appropriate legislation. Test: There must be congruence & proportionality between the injury to be prevented or remedied and the means adopted to that end. o 5 authority can only be used to regulate state action, not individual conduct. o Congress must be trying to remedy a constitutional violation. Modern Commerce Clause Analysis
Channels of interstate commerce Instrumentalities of interstate commerce Activities having a Substantial Affect on interstate commerce

Highways, railways, etc.

Regulation is acceptable to keep channels free from immoral or injurious use. (Heart of Atlanta)

Railroads, airlines, trucks, ships, etc.



Prevent Congress from exercising plenary police power. States as laboratories of experimentation. Slippery slopeWould this give Congress too much power & destroy vertical separation of powers? Political Safeguards argumentNot worried about limiting federal authority through judicial process because political process is sufficient.


Facially economic v. Economic as applied

No aggregation

Necessary & Proper + Commerce Clause

Activities that affect supply, demand, or market prices. Production & consumption of commodities.

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.

May aggregate (Wickard)

Attenuated link between activity & interstate commerce won't do. Need:

If end is legitimate, means chosen must only be "reasonably adapted" to attainment of that end under Commerce Clause.

Congress must only have a rational basis for concluding activity has an effect on interstate commerce.

"Constitutionally legitimate end" = constitutional means. (Scalia)

Means must be "plainly adapted" to legitimate end.

BUT Congress's intent in regulating not important; does regulation actually involve interstate commerce?

Jurisdictional hook

Legislative findings

If activity substantially affects commerce, means selected by Congress to regulate need only be "rationally related" to ends sought.

10th Amendment Powers not delegated to the U.S. by the , nor prohibited by it to the states, are reserved to the states respectively or to the people. Two Views 10th Amendment reserves a zone of activity to the states & 10th Amendment is but a truismmerely a reaffirmation exists as a separate limit on Congresss power. of the fact that Congress can act only within its enumerated powers. Where federal legislation exists, it is supreme. Congress cannot compel states to enact or administer federal regulatory program; there must be a choice, but Congress may offer incentives for compliance. (N.Y. v. U.S.) Government may not command state officers to administer or enforce a federal regulatory program. (Printz) Congress cannot impose affirmative duties on state governments. (Reno v. Comden) Congress cannot single states out for differential treatment, but if a statute applies generally to both state & private actors, it presumably would be constitutional.