Solution Manual For American Constitutional Law Volume I 6th Edition

Solution Manual for American Constitutional Law,
Volume I, 6th Edition
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Solution Manual for American Constitutional Law, Volume I, 6th Edition
Chapter 4
Constitutional Underpinning Libra
of the Presidency ry of
Cong
ress
 CHAPTER OUTLINE
I. INTRODUCTION
II. STRUCTURAL ASPECTS OF THE PRESIDENCY

A. Presidential Terms
B. The Electoral College
C. Presidential Succession and Disability
D. Removal of the Chief Executive
III. THEORIES OF PRESIDENTIAL POWER

A. Enumerated and Inherent Powers
B. The Stewardship Theory
1. The Supreme Court Legitimates Stewardship
C. The Outer Limits of Stewardship
IV. THE VETO POWER

A. The Pocket Veto
B. The Line-Item Veto
V. APPOINTMENT AND REMOVAL POWERS

A. The Removal Problem
VI. THE POWER TO GRANT PARDONS

A. Amnesties
VII. EXECUTIVE PRIVILEGE

A. The Watergate Tapes Controversy
B. Executive Privilege after the Nixon Tapes Case
VIII. PRESIDENTIAL IMMUNITY

A. Immunity for Private Misconduct?
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72 Chapter 4: Constitutional Underpinning of the Presidency
IX. FOREIGN POLICY AND INTERNATIONAL RELATIONS

A. The “Sole Organ” in the Field of International Relations?
1. The Iran-Contra Scandal
B. Specifics of Conducting Foreign Affairs
1. Treaties
2. Executive Agreements
X. WAR POWERS
A. The Vietnam War
B. The War Powers Resolution
C. The Persian Gulf War of 1991
D. The War on Terrorism
1. The Drone Controversy
E. Detention and Trial of Foreign Nationals Apprehended in the War on Terrorism
F. The War in Iraq
G. Domestic Affairs during Wartime
1. Civil War Cases
2. The “Relocation” of Japanese-Americans
H. Foreign Intelligence Surveillance
1. The NSA Surveillance Program
XI. CONCLUSION
 CRITICAL THINKING QUESTIONS

1. Given what you have learned about the Framers conception of executive power, what do
you believe the Framers of the Constitution would think of the powers of the
contemporary presidency?
2. Would the courts permit the president to issue an executive order suspending the writ of
habeas corpus with respect to noncitizens suspected of acts of terrorism?
3. Does the Constitution permit the president to order the American military to undertake
actions domestically to root out terrorist cells that may be located within this country?
4. How would the Supreme Court, Congress, and the public have responded if President
Nixon had refused to comply with the Supreme Court’s decision in the Watergate
Tapes Case?
5. Can Congress or the Supreme Court hold a president in contempt?
6. Would President Bush (the elder) have been justified in proceeding with the use of force
against Iraq if Congress had refused to authorize military action?
7. In your opinion, would the current Supreme Court be likely to uphold or invalidate a
“relocation” of a particular ethnic group in circumstances similar to those presented by
Korematsu v. U.S.? Why or why not?
8. Should the federal courts play a more active role in determining the constitutional
allocation of war powers between Congress and the presidency?
9. Under what circumstances should a citizen be permitted to sue a sitting president?
Chapter 4: Constitutional Underpinning of the Presidency 73
10. Discuss the varying views of what constitutes “high crimes and misdemeanors” for which
the president can be impeached? Include the Articles of Impeachment against President
Richard Nixon in your discussion.
11. Should the president be permitted to exercise a line-item veto, the Supreme Court’s
decision in Clinton v. City of New York (1998) notwithstanding?
12. Are the president’s powers as Commander in Chief adequate for successfully leading the
armed forces during times of war? Would you increase the enumerated powers the
president has in international affairs?
13. If Congress and the American people opted to repeal the Twenty-second Amendment
how would presidential behavior be altered, particularly in a president’s second term?
14. How would the executive-legislative relationship be altered, and how would bills be
presented differently if the president was stripped of the power of the pocket veto?
 LECTURE LAUNCHERS
Introducing Students to the Powers of the Presidency.
Technology in the classroom has become an essential aspect of higher education and is useful in
obtaining and maintaining student attentiveness, as compared to the traditional lecture format. A
website that can be useful to an instructor in introducing students to the powers of the president is
the website provided by the White House (http://www.whitehouse.gov/our-government/
executive-branch. This site contains information on the constitutional powers and duties of the
president. It also contains information about the Executive Office of the President and the
President’s cabinet. There are also links to the President’s Blog, the Open Government Initiative,
and the most recent 2010 fiscal budget. These various links can be utilized during classroom
discussion on many of the topics raised in this chapter. Under the “Briefing Room” tab, the latest
presidential actions are listed, including executive orders and proclamations. This could be useful
to an instructor when discussing executive orders. The text discusses executive orders from past
presidents; however, this website could be used to inform students of the types and nature of
executive orders issued by the Obama Administration. This could lead to an open classroom
discussion on the constitutionality of such presidential actions.
The American Presidency Project at the University of California-Santa Barbara.
Students who are interested in learning more about nearly any component of the American
presidency are advised to make use of the data, speeches, polling results and countless other
pieces of information available through The American Presidency Project
(http://www.presidency.ucsb.edu/). As the site declares; “The American Presidency Project
(americanpresidency.org), was established in 1999 as a collaboration between John T. Woolley
and Gerhard Peters at the University of California, Santa Barbara. Our archives contain 103,547
documents related to the study of the Presidency.” Among the archives available are State of the
Union addresses, a searchable database of presidential speeches and public papers, party
platforms, candidates’ remarks, Statements of Administration Policy, and documents released by
the Office of the Press Secretary. Other data that is available pertains to presidential elections,
public opinion measures, relations with Congress, growth of the executive branch, and public
appearances. Any student researching a component of presidential behavior is sure to find useful
material on this site. It also serves as a valuable teaching tool in revealing the multilayered
responsibilities of the presidency and for comparing presidents across different eras. Finally links
are provided to each of the president’s official presidential library websites for students interested
in further investigating one individual in greater depth. Chapter 4 is the perfect time to familiarize
students with this important and innovative website.
 HYPOTHETICAL PROBLEM (FOR CLASSROOM

DISCUSSION OR ESSAY EXAMINATION)
1. The President’s National Security Advisor has convinced him that Islamic militants pose
a clear and present danger to the security of Ruritania, a central African country that has
been a staunch American ally in the ongoing war on terrorism. There have been repeated
bombings, kidnappings, assassinations, and other acts of terrorism directed at the
government of Ruritania as well as that country’s military and police forces. A shadowy
group calling itself “Islamic Jihad for the Liberation of Sub-Saharan Africa” has taken
credit for these attacks. Their stated goal is to “replace the corrupt and decadent slaves of
the Great Satan with the rule of true Islam in Ruritania and throughout Sub-Saharan
Africa.” They have also demanded, as yet unsuccessfully, the release of 397 of their
comrades now being held in military confinement by the government of Ruritania.
The ruler of Ruritania is Kwame Mofota, a self-declared, unelected “president for life”
who came to power through a bloody military coup in 1989. Mofota has asked for
American military assistance to help put down the growing Islamic insurgency. After
consulting with the National Security Council, the President of the United States has
ordered 500 “military advisors” to Ruritania. Since their deployment, they have come
under hostile fire from insurgents and have been subjected to several car bombings, but
so far, no Americans have been killed or seriously wounded. Media reports indicate that
Ruritanian forces are gearing up for a massive offensive against the insurgents and are
being trained and equipped by the Americans for that offensive.
Amnesty International has long been critical of the government of Ruritania, going so far
in a recent press release as to call President Mofota “one of the worst human rights
offenders on the planet.” According to Amnesty’s report, the government of Ruritania
routinely arrests, confines, and interrogates suspects without probable cause or access to
counsel. Hundreds of political prisoners languish in Ruritania’s medieval prison system.
Few of them have ever been tried or even formally charged with crimes. Torture,
malnutrition, and disease are rampant in Ruritania’s prison system.
A number of influential members of Congress in both parties have for some time called
on the Administration to sever ties with the government of Ruritania. Now that American
military advisors have been deployed there without notification or approval of Congress,
support is growing in both the House and Senate for measures to force removal of the
American military personnel from that country.
What legal options would Congress have, assuming a majority of members in both
houses wished to express their disapproval of the deployment and recall the military
personnel? What arguments, legal and political, could be made for and against each of
these options? What arguments could be made by the President to justify a refusal to
comply with any congressional effort to remove American personnel from Ruritania?
Under what circumstances might this controversy move into the judicial arena? How
would the courts, including the Supreme Court, likely respond? In your judgment, how
should the courts respond to such a controversy?
2. Suppose in the future you are a sitting member of Congress and the following events
unfolded. The president of the United States is diagnosed with early onset Alzheimer’s
disease and this diagnosis becomes public. As a result, some citizens and political rivals
begin to question if the president is no longer fit to carry out the duties of the office of the
presidency. In the first public comment on the issue the president is defiant in explaining
that his health is perfectly fine for the time being, and that he will carry on until that is no
longer the case.
Several months later, however, some close to the president begin to notice what they
perceive to be changes in the president’s behavior and demeanor. Soon there is a
contentious debate among the president’s staff and advisors on how to proceed. Finally at
a cabinet meeting it is suggested the president resign from office, but the president
refuses. Thus, consistent with Article III of the Twenty-fifth Amendment the Vice
President and 11 of the 15 cabinet department heads “transmit to the President pro
tempore of the Senate and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his office.”
Having done as such, the Vice President claims to assume the office of the presidency.
But the president, also consistent with the Twenty-fifth Amendment, responds the very
next day. He “transmits to the President pro tempore of the Senate and the Speaker of the
House of Representatives his written declaration that no inability exists.” Thus, the
president assumes the responsibilities of the office. Next, the vice president and the same
cabinet officials “transmit within four days to the President pro tempore of the Senate and
the Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office.”
According to the rules of presidential succession the issue must now be decided by
Congress consistent with Article IV of the Twenty-fifth Amendment. As a member of
Congress you are in a unique position. Given twenty-one days to determine if the
president is fit to lead, what factors would you most consider? Would your partisan
ideology play a role? Would you concern yourself with the wishes of your constituency?
Finally, what potential role do you think the Supreme Court would play in this example?
While litigation would likely follow, on what grounds—constitutional or otherwise—
would the president challenge a congressional vote that removed him from office under
these circumstances?
 KEY TERMS
Twenty-second Amendment Amendment ratified in 1951 limiting presidents to two terms in
office.
Electoral College The body of electors chosen by the voters of each state and the
District of Columbia for the purpose of formally electing the
president and vice president of the United States. The number of
electors (538) is equivalent to the total number of representatives
and senators to which each state is entitled, plus three electors
from the District of Columbia.
Twenty-fifth Amendment Amendment ratified in 1967 dealing with issues of presidential
disability and removal.
impeachment (1) A legislative act bringing a charge against a public official

that, if proven in a legislative trial, will cause his or her removal
from public office. (2) Impugning the credibility of a witness by

introducing contradictory evidence or proving his or her bad
character.
inherent executive power The powers of the president that flow from the nature of the
office rather than from specific provisions of Article II.
stewardship theory The theory that the president, being steward of the country, may
exercise any and all powers he deems necessary to that end,
unless they are specifically prohibited by the Constitution.
constitutional theory (1) Broad term referring to theories about the Constitution
generally, or particular theories about particular provisions of the
Constitution. (2) In the area of the presidency, the theory that the
president can exercise only those powers specifically granted by
Article II.
presentment requirement veto As outlined in the Presentment Clause (Article I, Section 7) of
the Constitution, the requirement that a bill that has passed both
houses of Congress be “presented” to the president for signature
or veto.
pocket veto The power of a chief executive to effectively veto legislation by
not acting on a bill passed within ten days prior to adjournment
of a legislative session.
line-item veto Executive act nullifying certain portions of a bill.
appointment power The power of the president to appoint, with the consent of the
Senate, judges, ambassadors, and high-level executive officials.
removal power The power of the president to remove officials in executive
departments and agencies.
presidential pardon Action by the president pardoning one or more persons for the
commission of a crime.
amnesty A blanket pardon issued to a large group of lawbreakers.
executive privilege The right of the president to withhold certain information from
Congress or a court of law.
presidential immunity The barrier against bringing a civil suit against the president for
any of his official actions.
presidential power to make The president’s broad authority to set policy as it relates to
foreign policy international relations and foreign affairs.
treaty A legally binding agreement between one or more countries.

In the United States, treaties are negotiated by the president but
must be ratified by the Senate.
executive agreements An agreement between the United States and one or more
foreign countries entered into by the president without
ratification by the Senate.
commander in chief Term describing the president’s authority to command the armed
forces of the country.
presidential war powers Term referring to the president’s authority as commander in

chief.
War Powers Resolution The 1973 act of Congress purporting to limit a president’s
authority to commit troops to a combat situation abroad.
 INSTRUCTOR RESOURCES
Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge, MA: Harvard University
Press, 1973.
Berger, Raoul. Executive Privilege. Cambridge, MA: Harvard University Press, 1974.
Bessette, Joseph, and Jeffrey Tulis. The Presidency in the Constitutional Order. Baton Rouge:
Louisiana State University Press, 1981.
Cohen, David B., and John W. Wells (eds.). American National Security and Civil Liberties in an
Era of Terrorism. NY: Palgrave Macmillan, 2004.
Corwin, Edward S., et al. The President: Office and Powers (5th ed.). NY: New York University
Press, 1984.
Crabb, Cecil V. Invitation to Struggle: Congress, the President, and Foreign Policy (4th ed.).
Washington, DC: Congressional Quarterly Press, 1992.
Ely, John Hart. War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath.
Cambridge, MA: Harvard University Press, 1993.
Fisher, Louis. Presidential Spending Power. Princeton, NJ: Princeton University Press, 1975.
Gerhardt, Michael J. The Federal Appointments Process: A Constitutional and Historical
Analysis. Durham, NC: Duke University Press, 2001.
Henkin, Louis (ed.). Foreign Affairs and the United States Constitution. NY: Oxford University
Press, 1996.
Keynes, Edward. Undeclared War: Twilight Zone of Constitutional Power. University Park:
Pennsylvania State University Press, 1982.
Levy, Leonard, and Louis Fisher (eds.). The Encyclopedia of the American Presidency. NY:
Simon and Schuster, 1993.
Longley, Lawrence D., and Alan G. Braun. The Politics of Electoral College Reform (2nd ed.).
New Haven, CT: Yale University Press, 1975.
McGinty, Brian. Lincoln and the Court. Cambridge, MA: Harvard University Press, 2008.
McPherson, James M. Tried by War: Abraham Lincoln as Commander in Chief. NY: Penguin
Press, 2008.
Randall, J. G. Constitutional Problems under Lincoln (rev. ed.). Urbana: University of Illinois
Press, 1951.
Robinson, Greg. By Order of the President: FDR and the Internment of Japanese Americans.
Cambridge, MA: Harvard University Press, 2001.
Rozell, Mark J. Executive Privilege: Presidential Power, Secrecy, and Accountability (rev. ed.).
Lawrence: University Press of Kansas, 2002.
Schlesinger, Arthur. The Imperial Presidency. Boston: Houghton Mifflin, 1973.

Sirica, John. To Set the Record Straight: The Break-In, the Tapes, the Conspirators, the Pardon.
NY: Norton, 1979.
Smith, Jean Edward. FDR. New York: Random House, 2008.
Westin, Alan. The Anatomy of a Constitutional Law Case. NY: Macmillan, 1958.
 NOTES ON EXCERPTED CASES

THE FEDERALIST NO. 70
(Alexander Hamilton)
“The Executive Department Further Considered” is the title given to Federalist No. 70 by author
Alexander Hamilton. Herein, he explains the reasoning behind the founder’s preference for one
solitary individual to head the executive branch. Opponents feared that this was tantamount to
creating an office that paralleled a tyrannical king, but Hamilton expressed the concern that
accountability suffers in a plural executive structure. With only one chief executive the public
would always know where praise or blame belonged. Hamilton also argued that a singular
executive is necessary for the purpose of making substantial decisions quickly. Supporters of this
style of presidency posit that the legislature is home to deliberate action, but that efficiency was
needed in the executive, and that could not be achieved with multiple, equal voices in potential
disagreement. He also defended those impressive powers of the office as not antithetical to
individual liberty, but rather as key to upholding it. “Energy in the Executive is a leading
character in the definition of good government. It is essential to the protection of the community
against foreign attacks; it is not less essential to the steady administration of the laws; to the
protection of property against those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy.”
YOUNGSTOWN SHEET & TUBE CO. v. SAWYER

343 U.S. 579; 72 S.Ct. 863; 96 L.Ed. 1153 (1952)
Vote: 6–3
In December 1951 President Truman was informed that negotiations between labor and
management in the steel industry had broken down. Concerned about the possible consequences
of a stoppage in steel production, both for the domestic economy and for the Korean War effort,
Truman acted to delay a strike by referring the issue to the Wage Stabilization Board for further
negotiation. By April 1952 it became clear that negotiations were fruitless and the workers
announced their plans to strike. To prevent this, Truman ordered Secretary of Commerce Charles
Sawyer to seize the steel mills and maintain full production. Not surprisingly, this action was
challenged in the courts and very soon the issue was before the Supreme Court. Much to
President Truman’s chagrin, the Supreme Court (splitting 6–3) refused to allow the government
to seize and operate the steel plants. Writing for the Court, Justice Black rejected inherent
executive power as a justification for Truman’s order. In a separate concurrence, Justice Jackson
recognized an inherent executive power transcending particular enumerations in Article II but
nevertheless found Truman’s action to be impermissible. Noting that Congress had already
considered and rejected legislation permitting such an executive order, Jackson wrote, “when the
President takes measures incompatible with the expressed or implied will of Congress, his power
is at its lowest ebb.”
WIENER v. UNITED STATES

357 U.S. 349; 78 S.Ct. 1275; 2 L.Ed. 2d 1377 (1958)
Vote: 9–0
In this case President Eisenhower sought to remove a commissioner from the War Claims
Commission in order to replace him with his own appointee. Wiener was one of three
commissioners appointed by President Truman pursuant to the War Claims Act of 1948 to
adjudicate claims for compensating internees, prisoners of war, and religious organizations that
suffered personal injury or property damage at the hands of the enemy in World War II. After
refusing to tender his resignation, Wiener was removed from his position by President
Eisenhower in December 1953. In ordering Wiener’s removal, the President stated, “I regard it as
in the national interest to complete the administration of the War Claims Act of 1948, as
amended, with personnel of my own selection.” Wiener then brought suit in the Court of Claims,
seeking to recover his salary as a Commissioner from the day he was removed by Eisenhower, to
June 30, 1954, the day the Commission went out of existence. On appeal, the Supreme Court
ruled for Wiener and invalidated Eisenhower’s termination of him. Noting the adjudicatory
character of the Commission, Justice Frankfurter stated for the Court that “it must be inferred that
Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the
President for no other reason than that he preferred to have on the Commission men of his own
choosing.” Thus, the legality of presidential removal of an official in the executive branch
depends on the nature of the duties performed by the official in question. Officials performing
purely executive functions may be removed by the president at will; those performing quasi-
legislative or quasi-judicial functions can be removed by the president only for cause. Although
Congress may determine the basis for removal of such officials, the ultimate power to remove
officials in the executive branch belongs to the president.
UNITED STATES v. NIXON

418 U.S. 683; 94 S.Ct. 3090; 41 L.Ed. 2d 1039 (1974)
Vote: 8–0
This case arose when President Nixon refused to turn over a number of tape recordings
subpoenaed by the Watergate special prosecutor. In refusing to comply with the subpoena, Nixon
relied on executive privilege, the right of a president to withhold certain information from
Congress and the Courts. While recognizing the legitimacy of executive privilege as a means of
protecting nation security, the Supreme Court held that the privilege was not absolute and that the
President had no right to frustrate a legitimate criminal investigation. The proceedings took place
in a highly charged political environment, as the Nixon presidency was embroiled in scandal.
Ultimately the Court ordered Nixon to surrender the tapes to the Special Prosecutor. The ruling
further defined legitimate claims of executive privilege while bolstering the notion that presidents
must cooperate in criminal investigations short of serious national security concerns.
CLINTON v. JONES
520 U.S. 681; 117 S.Ct. 1636; 137 L.Ed. 2d 945 (1997)
Vote: 9–0
In a unanimous decision the Supreme Court rejected President Clinton’s request that proceedings in a
sexual harassment suit brought against him by a former Arkansas state employee, Paula Corbin
Jones, be delayed until he leaves office. This decision was the first to consider whether an incumbent
President could be sued for alleged actions occurring outside the scope of his official duties. Justice
Stevens delivered the opinion of the Court and Justice Breyer delivered a separate concurrence. The
Court declared that presidents were accountable to face an accuser just as any citizen would be when
the accusations are not directly related to duties of the office of the president. Clinton had argued that
this precedent would burden presidents with lawsuits from any number of potential sources, but the
Court rejected this claim, stating a difference between personal and professional responsibilities of
the president.
UNITED STATES v. CURTISS-WRIGHT EXPORT CORPORATION

299 U.S. 304; 57 S.Ct. 216; 81 L.Ed. 255 (1936)
Vote: 7–1
In May 1934, Congress adopted a joint resolution authorizing the president to forbid American
companies from selling munitions (under such limitations and exceptions as the president might
determine) to the warring nations of Paraguay and Bolivia. Additionally, Congress provided for
criminal penalties for those violating presidential prohibitions. Shortly after this resolution was
adopted, President Roosevelt issued an executive order imposing an embargo on arms sales to the
belligerent countries. In 1936 the Curtiss Wright Export Corporation was indicted for conspiring
to sell arms to Bolivia in violation of the embargo. Curtiss-Wright sought to avoid prosecution by
arguing that Congress had unconstitutionally delegated its lawmaking power to the president,
because the resolution allowed the president to make the specific rules controlling arms
shipments. Despite the fact that just one year earlier it had taken a tough stand on the issue of
delegation of legislative power (Schechter Poultry Corporation v. United States, 1935), the
Supreme Court refused to find anything unconstitutional in the Curtiss-Wright case. The Court
distinguished between two classes of power, domestic and foreign, and held that the rule against
legislative delegation applied only to the former. Furthermore, the Court suggested that the
president would have inherent power to impose such an embargo, even without an authorizing
resolution from the Congress. Expounding on presidential primacy in foreign affairs, the Court
referred to the president as the “sole organ of the federal government in the field of
international relations.”
DAMES & MOORE v. REGAN

453 U.S. 654; 101 S.Ct. 2972; 69 L.Ed. 2d 918 (1981)
Vote: 8–1
Under an Executive Agreement with Iran, President Jimmy Carter secured the release of fifty-two
American hostages in early 1981. The agreement negated all attachments against Iranian assets in the
United States and transferred claims against Iran from America to international tribunals. Dames &
Moore brought a suit in federal court challenging the constitutionality of the enforcement of the
executive orders and implementing regulations resulting from the Executive Agreement. The Court,
relying on Justice Jackson’s analysis of presidential power in Youngstown Sheet & Tube Company v.
Sawyer (1952), upheld the validity of the agreement. The Court found in the International
Emergency Economic Powers Act of 1977 sufficient presidential authority to cancel attachments
against Iranian assets. Finding no statutory authority for the transfer of claims to international
tribunals, the Court held that Congress had tacitly approved the President’s actions by its traditional
pattern of acquiescence to executive agreements.
THE PRIZE CASES

2 Black (67 U.S.) 635; 17 L.Ed. 459 (1863)
Vote: 5–4
These cases involved the disposition of Confederate vessels captured by the Union navy during
the blockade of Southern ports ordered by Lincoln in the absence of a congressional declaration
of war. Under existing laws of war, the captured vessels would become the property of the Union
navy only if the conflict were a declared war. Given the extremely sensitive politics of the day,
the Court could do nothing but find the seizures to be legal even though Congress had not
formally declared war against the Confederacy. The Court held that “the President is not only
authorized, but bound to resist force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative authority.” Additionally, Justice Grier noted
that the “President was bound to meet [the Civil War] in the shape it presented itself, without
waiting for the Congress to baptize it with a name; and no name given to it by him or them could
change the fact.”
KOREMATSU v. UNITED STATES

323 U.S. 214; 65 S.Ct. 193; 89 L.Ed. 194 (1944)
Vote: 6–3
Early in the Second World War, President Roosevelt issued orders authorizing the establishment
of “military areas” from which ostensibly dangerous persons could be expelled or excluded.
Congressional legislation supported Roosevelt’s orders by establishing criminal penalties for
violators. Under these executive and congressional mandates, General J.L. DeWitt, who headed
the Western Defense Command, proclaimed a curfew and issued an order excluding all Japanese-
Americans from a designated West Coast military area. The exclusion order led first to the
imprisonment of some one-hundred and twenty-thousand persons in barbed-wire enclosed
“assembly centers.” Later, these persons were removed to “relocation centers” in rural areas as far
inland as Arkansas. While recognizing that racial classifications are inherently suspect, a majority
of the justices concluded that, under the pressure of war, the government had a compelling
interest justifying such extreme measures.
HAMDAN v. RUMSFELD
548 U.S. 557; 126 S.Ct. 2749; 165 L.Ed. 2d 723 (2006)
Vote: 5–3
A Yemeni national detained at Guantanamo Bay brought suit to challenge the legality and
constitutionality of the military tribunal before which he was to be tried. Hamdan’s brief to the
Supreme Court argued that President Bush had “claimed the unilateral authority to try suspected
terrorists wholly outside the traditional civilian and military judicial systems, for crimes defined
by the President alone, under procedures lacking basic protections, before judges who are his
chosen subordinates.” In Hamdan’s view, the president’s actions “reach far beyond any war
power ever conferred upon the Executive, even during declared wars.” Dividing 5–3 (Chief
Justice Roberts not participating because he had previously voted in the case at the court of
appeals level) the Court held that the Bush Administration’s plan to try Guantanamo Bay
detainees before military commissions was unauthorized by statute and violated international law.
The overarching rationale of the Court’s decision is summed up by Justice Stevens’s assertion
that: “Even assuming that Hamdan is a dangerous individual who would cause great harm or
death to innocent civilians given the opportunity, the executive nevertheless must comply with
the prevailing rule of law in undertaking to try him and subject him to criminal punishment.” The
majority indicated that Congress could, through appropriate legislation, provide for the use of
military tribunals to try Guantanamo Bay detainees.
UNITED STATES v. UNITED STATES DISTRICT COURT

407 U.S. 297; 92 S.Ct. 2125; 32 L.Ed. 2d 752 (1972)
Vote: 8–0
Three defendants were charged with conspiracy to destroy government property. One was also
charged with the bombing of a CIA office in Ann Arbor, Michigan. Defendants filed a pretrial
motion to compel disclosure of information the government had obtained through electronic
surveillance that had not been judicially approved. The government asserted that the surveillance
was lawful as a reasonable exercise of the president’s power to protect national security. The U.S.
District Court for the Eastern District of Michigan held that the government’s surveillance
violated the Fourth Amendment prohibition against unreasonable searches and seizures. The U.S.
Court of Appeals for the Sixth Circuit agreed. The Supreme Court held that these activities
offended the Fourth Amendment prohibition against unreasonable searches and seizures.
Chapter 4: Exam
MULTIPLE CHOICE QUESTIONS
1. _____ wrote, “In republican government, the legislative authority necessarily predominates.”
a. Alexander Hamilton
b. John Jay
c. George Washington
d. None of the above is true.
ANS: D REF: 195
2. The tendency of presidents to seize power to cope with the exigencies of their times is what led
noted constitutional scholar _____ to remark that “the history of the Presidency has been a history
of aggrandizement.”
a. Alexander M. Bickel
b. Raoul Berger
c. Walter Murphy
d. Edward S. Corwin
ANS: D REF: 196
3. During the Constitutional Convention, one of the debates between the delegates centered on
a. the structure of the presidency.
b. the number of term limits for the president.
c. Both statements a and b are true.
ANS: C REF: 196
4. The _____, ratified in 1951, prohibited future presidents from being elected to more than
two terms.
a. Nineteenth Amendment
b. Twentieth Amendment
c. Twenty-first Amendment
d. Twenty-second Amendment
ANS: D REF: 197
5. The _____ was adopted in 1804, placing the offices of the president and vice president on
separate ballots.
a. Eleventh Amendment
b. Twelfth Amendment
c. Thirteenth Amendment
d. Fourteenth Amendment
ANS: B REF: 197
6. In the United States Electoral College the total number of Electoral votes is _____.
a. 435
b. 535
c. 538
d. 638
ANS: C REF: 197
7. The constitutional problem of presidential succession first arose in 1841 when President _____
died after only a month in office.
a. William Henry Harrison
b. John Tyler
c. James Knox Polk
d. Zachary Taylor
ANS: A REF: 198
8. If no presidential candidate receives a majority of the electoral votes, the _____ choose(s) the
President from the top three candidates.
a. Senate
b. House of Representatives
c. Supreme Court
d. people via a runoff election
ANS: B REF: 198
9. In United States history how many times has a candidate received fewer popular votes than their
principal rival and yet still ascended to the presidency?
a. Zero
b. Two
c. Three
d. Five
ANS: C REF: 198
10. The _____, proposed in the aftermath of the assassination of President John F. Kennedy,
establishes, among other things, a procedure under which the vice president may assume the role
of acting president during periods of presidential disability.
a. Twenty-third Amendment
b. Twenty-fourth Amendment
c. Twenty-fifth Amendment
d. None of the above is correct.
ANS: C REF: 199
11. The potential problem of presidential disability is addressed by the _____, ratified in 1967.
a. Twenty-sixth Amendment
b. Twenty-fifth Amendment
c. Twenty-fourth Amendment
d. Twenty-third Amendment
ANS: B REF: 199
12. President _____ was impeached by the House of Representatives in 1868 but narrowly escaped
conviction by the Senate.
a. Abraham Lincoln
b. James Garfield
c. Ulysses S. Grant
d. Andrew Johnson
ANS: D REF: 199
13. Which of the following presidents was NOT impeached by the United States House
of Representatives.?
a. Andrew Johnson
b. Richard Nixon
c. Bill Clinton
d. All of the above were impeached by the United States House of Representatives.
ANS: B REF: 199
14. Article II of the Constitution provides that the _____ has the authority to issue an executive order
“restricting the jurisdiction of the Supreme Court on a temporary basis.”
a. President
b. Senate
c. House of Representatives
d. The Cabinet
ANS: A REF: 201
15. In the view of _____, the president should “exercise no power which cannot be fairly and
reasonably traced to some specific grant of power or justly implied and included within such
express grant as proper and necessary to its exercise.”
a. Abraham Lincoln
b. Alexander Hamilton
c. William Howard Taft
d. Theodore Roosevelt
ANS: C REF: 202
16. The stewardship theory of presidential power, the modern counterpart to Alexander Hamilton’s
perspective, was best encapsulated by President _____.
a. Abraham Lincoln
b. Alexander Hamilton
c. William Howard Taft
d. Theodore Roosevelt
ANS: D REF: 202
17. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court _____ President
Truman’s order having the federal government seize and operate the nation’s steel industry.
a. upheld
b. struck down
c. refused to review
ANS: B REF: 203
18. Much to President Truman’s chagrin, the Supreme Court (splitting 6–3) refused to allow the
government to seize and operate the steel plants in which case?
a. Youngstown Sheet & Tube Company v. Sawyer (1952)
b. United States v. Midwest Oil Company (1915)
c. Korematsu v. United States (1944)
d. New York Times Company v. United States (1971)
ANS: A REF: 203
19. Given the Supreme Court’s decision in the case of Immigration and Naturalization Service v.
Chadha (1983), the legislative veto provision of the War Powers Act is presumptively
a. valid.
b. invalid.
c. actionable.
d. ripe for review.
ANS: B REF: 204
20. In _____, the most celebrated case arising from the Vietnam controversy, the Supreme Court
refused to issue an injunction against newspapers that had come into possession of the Pentagon
papers, a set of classified documents detailing the history of American strategy in Vietnam.
a. New York Times Company v. United States
b. In re Neagle
c. United States v. Nixon
ANS: A REF: 204
21. Under _____, “[e]very Bill” and “[e]very Order, Resolution or Vote to which the Concurrence of
the Senate and the House of Representatives may be necessary” must be presented to the
president for approval.
a. Article I, Section 7
b. Article I, Section 6
c. the presentment requirement
d. Both statements a and c are true.
ANS: D REF: 204
22. In _____, the Supreme Court invalidated the legislative veto partly on the ground that it violated
the presentment requirement of Article I.
a. Hamdan v. Rumsfeld (2006)
b. Immigration and Naturalization Service v. Chadha (1983)
c. Korematsu v. United States (1944)
d. United States v. United States District Court (1972)
ANS: B REF: 204
23. If Congress passes a bill and adjourns within ten days and the president has not signed the bill, it
is said to have to have been subjected to a (an) _____ veto.
a. item
b. silent
c. pocket
d. legislative
ANS: C REF: 204, 205
24. In _____, the Supreme Court declared the line-item veto law unconstitutional because the law
permitted the president to amend duly enacted legislation.
a. Clinton v. City of New York (1998)
b. Clinton v. Jones (1997)
c. United States v. Nixon (1974)
ANS: A REF: 205
25. Which of these Presidents enjoyed the power of the line-item veto before the Supreme Court
declared the practice unconstitutional?
a. Andrew Johnson
b. Richard Nixon
c. Bill Clinton
d. All of the above enjoyed the power of the line-item veto before the Supreme Court
declared the practice unconstitutional.
ANS: C REF: 205
26. Article II, Sections 2 of the Constitution enumerates specific powers granted to the president.
These include the authority to
a. nominate federal judges.
b. regulate interstate commerce.
c. declare war.
d. All of the above are true.
ANS: A REF: 206, 207
27. The Supreme Court first dealt with the question of the president’s “removal powers” in
a. Myers v. United States (1926).
b. Ex parte Milligan (1866).
c. Barnes v. Klein (1985).
d. Humphrey’s Executor v. United States (1935).
ANS: A REF: 207
28. The Supreme Court first dealt with the question of the president’s removal powers in
a. Myers v. United States (1926).
b. United States v. Nixon (1974).
c. The Prize Cases (1863).
ANS: A REF: 207
29. In _____, the Supreme Court upheld a provision of the Ethics in Government Act of 1978 under
which a “Special Division” of the U. S. Court of Appeals for the District of Columbia is
empowered to appoint special prosecutors to investigate allegations of misconduct involving high
government officials.
a. Buckley v. Valeo (1976)
b. Morrison v. Olson (1988)
c. Myers v. United States (1926)
d. Humphrey’s Executor v. United States (1935)
ANS: B REF: 207
30. Perhaps it was not a coincidence that Chief Justice _____ wrote the majority opinion in Myers v.
United States (1926).
a. John Marshall
b. William Howard Taft
c. Earl Warren
d. William Rehnquist
ANS: B REF: 207
31. In Wiener v. United States (1958), the Supreme Court held that the unique nature of independent
agencies requires that removal must be _____, whether or not Congress has so stipulated.
a. for cause
b. without cause
c. Both statements a and b are true.
ANS: A REF: 208
32. In _____, Justice Frankfurter stated for the Court that “it must be inferred that Congress did not
wish to have hang over the Commission the Damocles’ sword of removal by the President for no
other reason than that he preferred to have on the Commission men of his own choosing.”
a. Youngstown Sheet and Tube Co. v. Sawyer (1952)
b. Wiener v. United States (1958)
d. Clinton v. Jones (1997)
ANS: B REF: 208, 209
33. The Supreme Court has held that Congress may place limitation on the President’s power to
a. issue pardons and amnesties.
b. appoint heads of executive departments.
c. remove officials who perform quasi-legislative or quasi-judicial duties.
d. negotiate treaties with foreign countries.
ANS: C REF: 209
34. The President’s pardoning power was

a. originally granted by an Act of Congress.
b. always limited to persons convicted of non-capital felonies.
c. included in the original Bill of Rights.
d. granted by a provision in Article II of the Constitution.
ANS: D REF: 209
35. In Ex parte Garland (1867), the Supreme Court held that a presidential pardon
a. fully restores any civil rights that were forfeited upon conviction of a crime.
b. may not be issued in cases of treason against the United States.
c. may apply to state as well as federal crimes.
d. may be issued only after the individual has begun to serve his sentence.
ANS: A REF: 210
36. In an episode that became known as the “Saturday Night Massacre,” President Nixon fired
Attorney General Elliot Richardson and Assistant Attorney General William Ruckelshaus, both of
whom refused to follow the President’s order to dismiss Watergate special prosecutor _____.
a. Robert H. Bork
b. William H. Rehnquist
c. Fred Dalton Thompson
d. Archibald Cox
ANS: D REF: 211
37. In the Nixon Tapes Case of 1974 (United States v. Nixon) the Supreme Court ruled in effect that
a. the President’s claim of executive privilege as a justification for withholding subpoenaed
information from the grand jury and special prosecutor violated the Due Process Clause
of the Fifth Amendment.
b. the President’s claim of executive privilege can never be used as a basis for refusing to
provide information requested by a grand jury.
c. the President, like other Watergate coconspirators, should have been indicted before the
tapes were subpoenaed.
d. any presidential assertion of executive privilege must prevail over ordinary
considerations of the criminal process.
ANS: A REF: 211
38. Although recognizing the legitimacy of executive privilege as a means of protecting nation
security, the Supreme Court held that the privilege was not absolute and that the President had no
right to frustrate a legitimate criminal investigation in
a. Youngstown Sheet and Tube Co. v. Sawyer (1952).
b. Wiener v. United States (1958).
c. United States v. Nixon (1974).
d. Clinton v. Jones (1997).
ANS: C REF: 211
39. Which president’s administration coined the phrase “executive privilege”?

a. Andrew Jackson
b. William Howard Taft
c. Dwight Eisenhower
d. Richard Nixon
ANS: C REF: 211
40. The Supreme Court held in _____that the president is entitled to absolute immunity against
private civil suits, at least those stemming from the president’s official actions during his time in
the White House.
a. Kissinger v. Halperin (1981)
b. Nixon v. Fitzgerald (1982)
ANS: B REF: 213

41. In _____ the Supreme Court declared that presidents were accountable to face civil litigation just as
long as the controversy is not directly related to duties of the office of the president.
a. Youngstown Sheet and Tube Co. v. Sawyer (1952)
b. Wiener v. United States (1958)
ANS: D REF: 213
42. In Haig v. Agee (1981), the Supreme Court upheld the Reagan Administration’s decision to
revoke the _____ of a former CIA agent whose foreign activities were deemed a threat to
national security.
a. citizenship
b. security clearance
c. passport
d. transactional immunity
ANS: C REF: 214
43. In _____ the Supreme Court distinguished between two classes of power—domestic and
foreign—and held that the rule against legislative delegation applied only to the former.
a. United States v. Curtiss-Wright (1936)
b. Korematsu v. United States (1944)
c. Dames & Moore v. Regan (1981)
d. Hamdan v. Rumsfeld (2006)
ANS: A REF: 214
44. _____ authorizes the president to receive ambassadors and emissaries from foreign nations,
which provides the president the power to recognize the legitimate governments of
foreign nations.
a. Article II, Section 1
b. Article II, Section 2
c. Article II, Section 3
d. Article II, Section 4
ANS: C REF: 215
45. In response to the possibility that presidential reliance on treaties might override the limitations of
the Constitution, Senator _____ in the early 1950s proposed a constitutional amendment that
would have nullified any treaty provision conflicting with the Constitution.
a. James Eastland
b. Joseph McCarthy
c. Strom Thurmond
d. John Bricker
ANS: D REF: 216
46. The case of _____ stemmed from a treaty between the United States and Canada designed to
protect migratory birds.
a. Missouri v. Holland
b. Montana v. Canada
c. Oklahoma v. United States
d. Quebec v. United States
ANS: A REF: 216
47. A treaty negotiated by the President and ratified by the Senate

a. may not be overturned by a duly enacted federal statute.
b. may be negated by any of the fifty states acting in its sovereign capacity.
c. cannot interfere with the implementation of previously enacted state legislation.
d. may be overturned by a duly enacted federal statute.
ANS: D REF: 216
48. Senator _____ proposed a constitutional amendment in the aftermath of Supreme Court decision
Missouri v. Holland (1920) that would have nullified any treaty provision conflicting with
the Constitution.
a. Harry Reid
b. Barbara Boxer
c. John Bricker
d. Lamar Alexander
ANS: C REF: 216
49. President Carter’s agreement with Iran that secured the release of fifty-two American hostages in
early 1981 was _____ by the Supreme Court in Dames & Moore v. Regan (1981).
a. upheld
b. struck down
c. denied certiorari
ANS: A REF: 217
50. In _____the Court found in the International Emergency Economic Powers Act of 1977 sufficient
presidential authority to cancel attachments against Iranian assets.
ANS: C REF: 217
51. The Supreme Court held in _____that “the President is not only authorized, but bound to resist
force. He does not initiate the war, but is bound to accept the challenge without waiting for any
special legislative authority.”
a. United States v. Nixon (1974)
b. The Prize Cases (1863)
c. Youngstown Sheet & Tube Company v. Sawyer (1952)
ANS: B REF: 218
52. Presidential power to commit military forces to foreign combat was first exercised in 1801 by
President _____.
a. Thomas Jefferson
b. James Madison
c. George Washington
d. John Adams
ANS: A REF: 218
53. In Massachusetts v. Laird (1970), the Supreme Court _____ the constitutionality of the American
war effort in Vietnam.
a. upheld
b. struck down
c. refused to review
ANS: C REF: 219
54. During the Vietnam era, the Supreme Court had ample opportunity to rule on the constitutionality
of the war and the concomitant use of presidential power, but it declined to do so, viewing the
issue as
a. moot.
b. not ripe for review.
c. a failure to exhaust remedies.
d. a political question.
ANS: D REF: 219
55. In 1973, Congress adopted the _____ over the veto of President Nixon. The act was designed to
limit the president’s unilateral power to send troops into foreign combat.
a. International Emergency Economic Powers Act
b. Hostage Act
c. War Powers Resolution
ANS: C REF: 219
56. In _____ the Court held that the president could not authorize a plan to place detainees before
military commissions, and that such a plan was unauthorized by statute and violated
international law.
ANS: D REF: 222
57. In Korematsu v. United States (1944) the Supreme stated that a presidential order authorizing the
exclusion of persons of Japanese ancestry from designated areas along the west coast of the
United States
a. was an unconstitutional deprivation of due process and equal protection.
b. was inherently suspect but ultimately constitutional.
c. had a rational basis.
d. presented a nonjusticiable political question.
ANS: B REF: 225
58. The _____ requires government agents to obtain a warrant from the Foreign Intelligence
Surveillance Court before subjecting U.S. citizens to electronic surveillance for the purpose of
gathering foreign intelligence.
a. Foreign Intelligence Surveillance Act
b. USA Patriot Act
c. The War Powers Act
d. All of the above are true.
ANS: A REF: 226
ESSAY QUESTIONS
1. Political scientist Edward S. Corwin once observed that “the history of the presidency has been a
history of aggrandizement.” Explain and critique Corwin’s observation from the standpoint of the
allocation of constitutional powers.
2. Compare and contrast the constitutional theories of presidential power of Alexander Hamilton
and James Madison. Which theory has generally prevailed in the decisions of the Supreme Court?
3. Explain and evaluate the reasoning of the Supreme Court in United States v. Curtiss-Wright
Export Corporation (1936).
4. Describe the arguments that Congress made in passing the War Powers Resolution of 1973. Why
did they feel it was necessary to do so and what part of the Constitution were they relying on in
making their argument?
5. List and discuss the main arguments presidents have made against the War Powers Resolution of
1973? Why have they argued that it is unconstitutional? Why has the Supreme Court to date been
silent on this controversy?
6. Analyze and evaluate the reasoning of the various opinions filed in the Supreme Court’s decision
in Hamdan v. Rumsfeld (2006).
Solution Manual for American Constitutional Law, Volume I, 6th Edition
7. Discuss the original purpose and functionality of the Electoral College. Compare the original
purpose of the Electoral College with today’s functionality. Include in your answer the ongoing
debate regarding whether the United States should continue to employ such a mechanism for
determining the outcome of a presidential election.
8. Compare and contrast presidential power in the areas of domestic and foreign relations policy.
9. Explain and evaluate the reasoning of the Supreme Court in Humphrey’s Executor v. United
States (1935)
10. When are presidents most likely to use the power to grant pardons? Are certain individuals or
those who have committed a certain type of crime more likely to receive a pardon than others?
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II. STRUCTURAL ASPECTS OF THE PRESIDENCY

III. THEORIES OF PRESIDENTIAL POWER

IV. THE VETO POWER

V. APPOINTMENT AND REMOVAL POWERS

VI. THE POWER TO GRANT PARDONS

VII. EXECUTIVE PRIVILEGE

VIII. PRESIDENTIAL IMMUNITY

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IX. FOREIGN POLICY AND INTERNATIONAL RELATIONS

 CRITICAL THINKING QUESTIONS

 HYPOTHETICAL PROBLEM (FOR CLASSROOM

impeachment (1) A legislative act bringing a charge against a public official

from public office. (2) Impugning the credibility of a witness by

treaty A legally binding agreement between one or more countries.

presidential war powers Term referring to the president’s authority as commander in

Schlesinger, Arthur. The Imperial Presidency. Boston: Houghton Mifflin, 1973.

 NOTES ON EXCERPTED CASES

YOUNGSTOWN SHEET & TUBE CO. v. SAWYER

WIENER v. UNITED STATES

UNITED STATES v. NIXON

UNITED STATES v. CURTISS-WRIGHT EXPORT CORPORATION

DAMES & MOORE v. REGAN

THE PRIZE CASES

KOREMATSU v. UNITED STATES

UNITED STATES v. UNITED STATES DISTRICT COURT

ANS: D REF: 195

ANS: D REF: 196

ANS: C REF: 196

ANS: D REF: 197

ANS: B REF: 197

ANS: C REF: 197

ANS: A REF: 198

ANS: B REF: 198

ANS: C REF: 198

ANS: C REF: 199

ANS: B REF: 199

ANS: D REF: 199

ANS: B REF: 199

ANS: A REF: 201

ANS: C REF: 202

ANS: D REF: 202

ANS: B REF: 203

ANS: A REF: 203

ANS: B REF: 204

ANS: A REF: 204

ANS: D REF: 204

ANS: B REF: 204

ANS: C REF: 204, 205

ANS: A REF: 205

ANS: C REF: 205

ANS: A REF: 206, 207

ANS: A REF: 207

ANS: A REF: 207

ANS: B REF: 207

ANS: B REF: 207

ANS: A REF: 208

ANS: B REF: 208, 209

ANS: C REF: 209

34. The President’s pardoning power was

ANS: D REF: 209