Separation of Powers

President's War Powers

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." (Article II Section 2) War powers are divided between the President and Congress. Congress has the power to declare war, make rules regarding capture, raise armies, and support a navy while. The President is the Commander in Chief. He conducts the war once it's declared. He can repel sudden invasions and take emergency action to protect the lives/property of U.S. citizens, unless Congress has specifically said no. He also has some power to "detain enemy combatants" during times of war.

Recess Appointment

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." (Art. II, Section 2, Cl. 3) These appointments do not require consent of the Senate. The recess session however must be short enough

President's Power to Appoint

"[President] shall have power [to] nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Art. II Sec. 2)

Ex Parte Quirin (1942)

- Lawful combatants are subject to capture and detention as POW's by opposing military forces. - Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Ex parte Milligan (1866)

- Ruled that a civilian cannot be tried in military courts while civil courts are available. - Limited the president's power to suspend habeus corpus

War Powers Resolution

1) President can only introduce forces into hostilities, or situations where hostilities are imminent if a) there is declaration of war (by Congress), b) specific statutory authorization to do so (from Congress, pursuant to the WPR) or c) a national emergency created by an attack on the US, its territories or possessions or its armed forces 2) in any situation where forces have been introduced w/o a declaration of war, the President must submit to the Speaker of the House and the Pres Pro Tempore of the Senate a report setting forth a) the reasons why introduction was necessary, b) the constitutional/legislative authority for their introduction, and c) estimated scope and duration of the hostilities or involvement; and must provide other information at the request of Congress 3) within 60 days ... the President shall terminate any use of armed forces related to the report, unless: a) Congress has declared war, or has enacted specific authorization for the use of the armed forces; b) Congress has passed a law extended the 60 day period; or c) Congress is physically unable to meet as a result of an armed attack on the United States 4) after 60 days, in the absence of a declaration of war or use of force authorization, Congress may pass a concurrent resolution ordering the President to remove any and all armed forces

3 Degrees of Presidential Power

1) When Congress has expressly or impliedly given him permission to do something, the President's power is greatest, and he can do what Congress has delegated to him as well as his own constitutional powers 2) When Congress is silent, there is a zone of twilight regarding what the President can do, which is greater in the area of foreign affairs, but usually depends on past practice of Presidents and Congress 3) When Congress' desire conflicts with the President's, he can only rely on his exclusive Constitutional powers.

Ways that a Branch of Government Could Violate Separation of Powers

1. Seeking to Use a Power Owned by Another Branch 2. Seeking to Undermine a Power Owned by Another Branch 3. Seeking to Give Away Part of its Power to Another Branch 4. Seeking to Give its Own or Another Branch's Power to Some Other Entity

Joint Resolution

A formal expression without the force of law of congressional opinion that must be approved by both houses of congress and by the President.

Presentment

A law must be presented to the President and approved (unless Congress overrides a veto) before it becomes law.

Bowsher v. Synar (1986)

A statute gave the Comptroller General duties to reduce the deficit by recommending mandatory budget cuts to the President. He could be fired by members of Congress for just cause. The Court held that the statute was unconstitutional and violated separation of powers because it gave executive authority to a Congressional official who may be fired by Congress, essentially taking marbles away from the President and giving it to Congress. Since the Comptroller General was a purely executive official, the President, not Congress, had the sole authority to remove him at will, and he should not be given executive functions if Congress has power to remove him.

Checks and Balances

A violation of separation of powers in which branches of government encroach on certain duties of others. Examples include the President's power to reject laws proposed by Congress or the Court's power to declare laws unconstitutional. Together with separation of powers, checks and balances makes it more efficient even though it undermines it.

Dames & Moore v. Regan (1981)

After the Iranian hostage crisis, President Carter issued an executive order freezing Iranian assets in the U.S and established an international claims tribunal to settle the claims regarding the freezing of those assets. The Court held that the President had the authority to do this through an executive agreement by relying on the National Emergencies Act and the International Emergencies Economic Powers Act even when a statute did not specifically give him the power and the action conflicted with state law. However, the President only has this power to settle these claims where Congress acquiesces. The President does not have plenary power to settle all claims. This action fell within category 2 where Congress' intent was unclear, but past practice and a higher degree of foreign affairs powers allowed the President to take this action.

Morrison v. Olson (1988)

After the Saturday Night Massacre following the Watergate Scandal, Nixon removed the special prosecutor who was investigating him. In response, Congress passed the Ethics in Government Act that allowed an independent counsel to be appointed by the Attorney General and could only be removed with just cause by the AG. The Act was challenged when an independent counsel was appointed to investigate DOJ officials for obstructing justice. The Court held that the Act did not violate separation of powers because the independent counsel could be removed only for just cause but not because she was not purely an executive official but rather because she is not taking away marbles from any other branch of government as an independent official. This aspect of executive versus on-executive of Myers was overruled. Additionally, she was an inferior officer that could be appointed by someone other than the President with advice and consent of the Senate because her functions were limited and she could be fired by a higher official.

United States v. Nixon (1974)

After the Watergate Scandal when supporters of Nixon were caught breaking into the Democratic headquarters, Nixon had certain conversations regarding covering up the scandal recorded. The Attorney General appointed a special prosecutor, who listed Nixon as a co-conspirator, though he did not indict him. Nixon released some edited transcripts of the tapes but would not give the full transcripts. The Court held that while the President has a qualified presumptive privilege with regard to communications with his advisors, this privilege is limited, and the need for evidence in a pending criminal trial outweighs the confidentiality of the President's communications, unless the transcripts concern military, diplomatic, or sensitive national security concerns, which was not the case here. Also, here, the communications would be viewed in camera or in the judge's chambers behind closed doors. Separation of powers concern regarding the Court interfering in an inter-executive dispute does not preclude judicial review of executive privilege since the Court has the power to interpret all of the Constitution and was not asserting any executive function.

Executive Agreement

An agreement negotiated with a foreign nation by the President without ratification by the Senate.

Concurrent Resolution

An expression of opinion without the force of law that requires the approval of both the House and the Senate, but not the President.

Bag of Marbles Example

Analogy of constitutionally granted powers as bags of 100 marbles that are given to each of the three branches. There are Separation of Powers problems when one of the branches loses one of its marbles or gains marbles it's not supposed to have.

Intelligible Principle Test

As long as Congress gives an executive agency or entity sufficient instructions or an "intelligible principle" as to how to enforce the law, Congress is allowed to delegate implementation and enforcement of the law.

President's Power to Withdraw from Treaties

As of now, the Court has not said the President does not have the power to unilaterally withdraw from treaties, so it appears that he can, since it has not said he cannot.

Immigration and Naturalization Service v. Chadha (1983)

Chadha, an immigrant's, visa expired, but the immigration judge found that he could stay based on the Immigration and Nationality Act that stopped his deportation if it would impose extreme hardship and the immigrant was of good moral character. The Attorney General recommended that his deportation by suspended along with other immigrants. However, Congress tried to veto this determination using the legislative veto power. The Court held that this legislative veto power was unconstitutional because it qualified as legislation and did not go through the formal law-making process of being presented to the other house of Congress and approved by the President. The dissent argues that striking down the legislative veto as unconstitutional invalidates more than 200 statutes and undermines a check by Congress on the executive. The legislative veto is unconstitutional because the cancellation of the suspended deportation was a judicial act. This was a functionalist argument.

Non-Delegation Doctrine

Congress has the power to legislate while the executive branch enforces the law, but it can delegate certain powers to executive agencies if it provides sufficient instruction or an intelligible principle to the agencies explaining how they should go about enforcing the law. The Court has not said that Congress failed to provide an intelligible principle since 1935. Congress cannot make laws specific and detailed enough for everything to work, so it delegates certain powers to executive agencies who can better enforce the law in particular areas.

Hamdi v. Rumsfeld (2004)

Congress passed the Authorization for Use of Military Force (AUMF) after the September 11 attacks. Hamdi, a suspected terrorist, was detained by the U.S. military in Afghanistan, sent to Guantanamo Bay, and then Virginia once he was discovered to be a U.S. citizen. While Congress gave the President authority under the AUMF to detain enemy combatants suspected of terrorism, even its own citizens, his detainment violated due process because Hamdi had no real opportunity to contest that he was not an enemy combatant. The Court noted that the President could order the indefinite detention of enemy combatants, but this war against terror is unique because nobody knows when it will end, and it is still going on in 2019.

Whitman v. American Truckers Association (2001)

Congress passed the Clean Air Act and delegated to the Environmental Protection Agency to promulgate certain clean air standards. The Court held that the delegation by Congress to the EPA because Congress provided enough of an intelligible principle to the EPA and past cases with similar language have held that the intelligible principle was satisfied.

Zivotofsky v. Kerry (2015)

Congress passed the Foreign Relations Authorizations Act which allowed the state department to let citizens from Jerusalem say Israel as their citizenship on passports in violation of the executive's neutral policy towards recognizing Jerusalem as Israel's capitol. The court said that the President had the exclusive power to recognize other nations stemming from his power to receive ambassadors, make treaties, appoint ambassadors, and conduct foreign relations.

Clinton v. New York (1998)

Congress passed the Line Item Veto Act which allowed the President to "cancel" specific types of spending provisions of large appropriations bills without vetoing the entire bill. Clinton cancelled three spending provisions pursuant to the Act. The Court held that the line-item veto was unconstitutional, in a classic formalism analysis, because the process of law-making involves presenting the bill to the President to sign or veto in full, unless Congress overrides the veto, and he cannot simply change the law because that is not the correct process.

Separation of Powers

Constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making law, the executive applying and enforcing the law, and the judiciary interpreting the law.

Bouemediene v. Bush

Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees that includes the same procedural protections and opportunities that would be provided in a writ of habeas corpus.

United States v. Curtiss-Wright Corp. (1936)

Defendants conspired to sell in the U.S. machine guns to Bolivians who were engaged in conflict with Chaco in violation of Joint Resolution of Congress and a declaration by the President. The Court held that Congress could delegate its functions to the executive because the President has extra-constitutional powers in foreign affairs that derive from external State sovereignty. The court called the President the "sole organ" who represents the government in foreign affairs. This case is cited as the broadest interpretation of the President's foreign affairs power.

Congress' Power to Limit the President's Appointment Power

For an appointment, an entity other than the President with advice and consent of the Senate can appoint inferior officers only. Principal officers may only be appointed by the President with advice and consent of the Senate.

Executive Power

For domestic affairs, the President exercises only powers given to him by the Constitution or by Congress. For foreign affairs, the President's powers are arguably broader.

Inferior Officer

For inferior officers, or all officers that are not principal, they may be appointed by other entities such as department heads, courts, or the President.

Congress' Power to Limit the President's Removal Power

For removal, Congress has some power to limit the President's power to remove officials. If it is a purely executive official, the early view stated that Congress had no power to intervene, but for an independent official, the officer could only be removed with just cause. After Morrison, that distinction has been modified to focus more about the shifting balance of powers between the branches of government with regard to removing independent officials without just cause.

Executive Immunity - Official Acts

Immunity is a complete or partial restriction on exposure to liability. The President has absolute immunity with regard to civil suits against him based on actions taken as President in his official capacity both before and after he leaves office. There are two reasons for this. First, a lawsuit would distract the President from his duties, also called simple nuisance. Second, the fear of a lawsuit would cause the President to do his job in a less efficient way based on the fear of getting sued, also called complex nuisance.

Presidential Immunity for Criminal Suits While in Office

It is still an open question whether a President can be prosecuted while in office. We have impeachment proceedings, but is Congress, rather than the criminal justice system, the right entity to do this?

Military Commissions Act

Law passed by congress in 2008 that suspended Habeus Corpus Signed by President Bush, the Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes.

Nixon v. Fitzgerald (1982)

Nixon directed Fitzgerald be fired from the Air Force after he testified about planes' cost overruns and technical difficulties. He sued Nixon for firing him after he was no longer President. The Court held that the President was immune from civil suits based on actions he made in his official capacity. There are still checks on the President outside of the civil system such as impeachment, elections, Congressional oversight, etc. Here, the Court does not want the President to be distracted by fear of possible lawsuit when he does his job. Allowing this sort of immunity allows him to do his job more effectively. The dissent disagrees, saying that the decision essentially lets the President get away with anything no matter the damage.

Smith v. Obama (2016)

Obama did not seek Congressional approval for an operation against ISIL in Kuwait. An army captain asserted that he was injured because he could not participate in a war that was not honorable. However, this injury was too esoteric and not concrete or particularized. Additionally, this was a non-justiciable political question because the judicial branch is not the correct branch of government to resolve the dispute, which would be better left to the political branches of government.

Kucinich v. Obama (2011)

Obama ordered military attacks in Libyan government, and members of Congress claimed he violated the War Powers Act and War Powers Resolution. However, the Congressmen lacked standing both as lawmakers and taxpayers. The injury is generalized to all Congressmen and all taxpayers and not particularized enough. Instead, Congress should pass something or take action rather than sue.

Independent Agency

Often led not by one Secretary but by a multi-member board or commission. Officials are appointed by the President with advice and consent of the Senate but with restrictions based on political party. Officials have multi-year terms and can only be fired by the President "for cause") [e.g., FCC, SEC, FTC, CIA]

Aggrandizement

One branch gives its power to someone or something that is not another branch of government. This separation of powers violation is less dangerous because one branch's bag of marbles goes to 99, but that's it.

Encroachment

One branch takes or gives away a power to another branch that it's not supposed to have. This is more dangerous because one branch's bag of 100 marbles goes to 99 while the other's goes from 100 to 101.

Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)

PCAOB was created to regulate the accounting industry. The SEC appointed a five-member board that could only be removed with just cause. The SEC commissioners were appointed by the President and also could only be removed for just cause. There was essentially a two-tier system between the President and the PCAOB. The Court held that this two-tiered for cause removal system violated separation of powers by undermining the President's power. The President cannot take Care that the Laws be faithfully executed if he cannot oversee the faithfulness of the officers who execute them.

Goldwater v. Carter (1979)

President Carter announced he would withdraw from a treaty with Taiwan's Republic of China. The Court could not agree and essentially dismissed the case on standing and justiciability grounds and took no action, implying that the President could do this, since it never said it could not.

Executive Privilege (Qualified)

Privilege is an exception to an otherwise legal duty. The President has a qualified privilege to keep conversations between him and advisors confidential, but this presumptive privilege can be overcome by a need for evidence in a pending criminal trial. Additionally, communications involving military, national security, or diplomatic concerns generally are protected.

Humphrey's Executor v. United States (1935)

Roosevelt hired the FTC commissioner that Hoover had appointed. The Court said that the President had the power to fire purely executive officials at will, but because the FTC commissioner serves roles that are independent from the executive branch, he can only be fired with just cause. These agencies are independent because they exercise quasi legislative, judicial, or executive power.

Hamden v. Rumsfeld (2006)

Secret military tribunals are unlawful since they failed to provide even minimal protection of rights. President's detainment order was unconstitutional because it was inconsistent UCMJ statutes and the laws of war of the Geneva Convention.

Formalism

The Constitution creates a set form of procedures in the law-making process, and any deviation from that form must be unconstitutional. For example, the Constitution requires that laws are passed by both chambers of Congress, and not following that process violates separation of powers.

Functionalism

The Court determines whether whatever allegedly violated separation of powers presented an actual functional threat to the notion of separation of powers by actually and meaningfully shifting the balance of powers to another branch. This involves taking one branch's marbles away.

Executive Agency

The Departments headed by the Cabinet Secretaries) - all high-level officials of these agencies are appointed by the President with advice and consent of the Senate. They serve "at the pleasure of the president" (he can fire them "at will") [e.g., Department of Justice, Department of State, Department of Agriculture, Department of Defense].

National Labor Relations Board v. Noel Canning (2014)

The President appointed members of the NLRB during recess claiming it was valid under the recess appointments clause. The Court held that the "recess" was not long enough to allow for a recess appointment and while "recess" applies to both intra-session and inter-session recesses, a recess session that does not require consent of the House or is less than 10 days is presumptively too short.

Executive Immunity - Unofficial Acts

The President does not have immunity against suits for acts not within his official capacity, either during or before/after his Presidency. The concern that a lawsuit would distract from his duties is valid, but he should be able to be tried for non-official acts.

Myers v. U.S. (1926)

The President fired the postmaster of Portland, Oregon. A statute said that the Senate must approve such firings. The Court held that the President has the sole power to fire the postmaster because the President alone is the head of the executive branch and must be able to select and remove the executive officials below him. The argument was a functionalist argument because there is nothing specific to point to in the Constitution for formalism to apply, and the Court was essentially saying that you cannot take the marbles from the President and give it to Congress.

Executive Power - Foreign Affairs

The President has broader power in the area of foreign affairs because the Constitution gives the President the power to conduct foreign relations and his power also comes from the U.S. as a sovereign, rather than the Constitution alone. He also has the power to receive ambassadors, make/withdraw from treaties, and act as the "sole organ" of the U.S. in the area of foreign affairs.

President's Recognition Power

The President has the exclusive power to recognize other nations stemming from his power to receive ambassadors, make treaties, appoint ambassadors, and conduct foreign relations. This is a category 3 "exclusive power."

Principal Officer

The President has the power to appoint all principal officers, who are generally high enough officials that report directly to the President, with the advice and consent of the Senate. Congress can never appoint principal officers on its own.

President's Power to Conclude International Agreements

The President has the specific power under the Constitution to conclude international agreements with the advice and consent of the Senate. However, he also has some power to conclude executive agreements without the Senate's ratification under his broad foreign affairs power.

Presidential Emergency Powers

The President may be able to exercise emergency powers during a crisis when waiting for Congressional approval would be futile, but he should give Congress notification and ask for forgiveness/approval as a first resort, or at least shortly after the action.

Executive Power - Domestic Affairs

The President may exercise only those powers granted to him expressly or implicitly by Congress (i.e. a statute) or by the Constitution with regard to domestic affairs.

Extra-Constitutional Origin of Foreign Affairs Power

The President's foreign affairs power comes not from the Constitution but the U.S. as a sovereign, which preceded the Constitution, making the power broader and giving him some implied powers based on past practices of presidents. Additionally, the President should have greater rights as the representative or "sole organ" of the U.S. in foreign affairs.

President's Power to Remove

The President's power to remove is not explicitly stated in the Constitution except for impeachment. The Court has held that the President has the power to remove officials, but if they are independent officials, then they cannot be removed without just cause. If they are purely executive officials, then they can be removed by the President for any reason. However, in recent years, the inquiry has become more about a functionalist approach to separation of powers to determine if an official may be removed without just cause rather than whether he is a purely executive official.

Congress' War Powers

The congress may control the funding of the war, declare war, and wage/end the war. Congress can also withdraw troops within a certain period of time if actions of the President are deemed incorrect. Congress can also raise and support armies, make rules regarding capture, and maintain a Navy.

President's Power to Detain Enemy Combatants

The executive can detain enemy combatants to a certain extent during war times.

Unitary Executive Theory

The idea that the vesting clause of the Constitution gives the president the authority to issue orders and policy directives that cannot be undone by Congress.

Bicameralism

The law-making process must go through both Houses of Congress before a bill can become a law.

Legislative Veto (Invalid)

The legislative veto is a one-house veto by the House to stop an action made by an executive agency to carry out a power that Congress delegated to the agency without approval by the Senate or the President. The legislative veto is unconstitutional because it violates the presentment and bicameralism requirements of the law-making process in the Constitution. It violates formal notions of separation of powers.

Line-Item Veto (Invalid)

The line-item veto allows the President to cancel certain provisions of a bill but approve the rest. This was held as unconstitutional because the President only has the power to approve or reject a law, but he cannot make changes. It was struck down as a formal violation of separation of powers.

Purposes of Separation of Powers

The purpose of separation of powers is to divide the government into 3 different branches, each with different roles and powers. This system protects the people, prevents government abuse and tyranny, though because of this it is slow and inefficient by its nature.

Youngstown Sheet & Tube v. Sawyer (1952)

Truman attempted to direct the Secretary of Commerce to seize certain steel mills during the Korean War to make sure they continued operating when workers were on strike because he believed it necessary to the war effort. The President argued he could do this through an aggregation of his Commander in Chief, executive power, and power to execute the laws faithfully, but the Court held that no constitutional power or statute by Congress has authorized him to take this action. The President cannot make the law, and he does not enjoy the same implied power that Congress does. Jackson's concurrence is more well-known than the opinion because Justice Jackson came up with the 3 categories of presidential power: 1) when Congress has approved the President's action, 2) when Congress is silent on the matter, or 3) when Congress disapproves. Here, the President's actions fell in category 3.

Clinton v. Jones (1997)

When Bill Clinton was governor of Arkansas, he made lewd sexual advances toward Jones. Her superiors punished her for rejecting him, and she sued him after he became President. The Court held that the President was not immune to the suit here because his actions were not made in his official capacity as President. Additionally, there was no need to delay the lawsuit until after his presidency. This case involved concerns of simple nuisance because the issue was regarding whether the lawsuit itself would be a distraction to the President while he was in office. It ended up being a huge distraction because he discussed another affair with Monica Lewinsky in his deposition for this trial, which led to his eventual impeachment by the House. Making him subject to civil suits for unofficial acts would not interfere with separation of powers since the judicial branch is not being asked to perform any executive function.

Simple Nuisance

When a pending lawsuit would distract the President, or other official, from doing his job while he is in office. This is an argument for immunity for any pending suits while the President is in office.

Complex Nuisance

When the President acts in a way that is not in the country's best interests because he is concerned that he could be sued for actions that he takes in his official capacity. This is the justification for absolute immunity for actions taken in the President's official capacity.