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Constitutional Law I Outline - Professor Wallace - Campbell Law - Part 2

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 1 | Part 3 >>

Executive Powers (Article II)

The Nature of Executive Power

  • Art II
    • Attempts to take a medium between tyranny of English monarchy and the weakness of Pres with the Art of Confed
    • Vesitng clause gives all ex power to pres, but this power can be limited or delegated
    • Sections:
      1. granting of power (vesting clause) and qualifications
      2. Specifies and limits certain pres. Powers
      3. Limits, and duties:
        • State of the union address
        • Recommending new laws to Congress
        • Receiving foreign ambassadors
        • Faithfully ex laws
        • Commissioning all officers to US
      4. subject to impeachment
  • Basic elements of Ex power:
    • Appointing officers
    • Supervising and removing those officers
    • Faithfully executing the laws
  • Themes:
    • Unitary
    • Energy
    • Independence
    • Law executing, not law making

The Appointment power

  • Art II, Sect 2: appointments clause and recess appointments clause
    • Need advice and consent of the senate; inferior officer appointments can be vested in other people, up to Congress
  • Buckley v. Valeo
    • Can Congress pass a law that allows people other than the pres to nominate officers?
      • NO; law allowing that is unconst.
      • Officers defined as anyone who exercises significant authority pursuant to the laws of US (broad definition)
      • Officers must be nominated by pres, then confirmed by congress, then officially appointed by pres
      • Under Art. II, Congress could vest the appt power for inferior offices in the president, the heads of the departments, or the lower federal courts. The Speaker and pres pro tem are none of these and therefore do not possess the appt power.
  • Noel Canning v. NLRB
    • Can president make recess appointments intra-session?
      • Yes, both inter and intra within power
    • Can pres make appointments which exist, or only happen during, a recess?
      • Both
    • Is a pro forma session a real session?
      • Yes
    • Constitutional, then?
      • No; 3 days is too short a recess for the recess appointments clause to apply so appointment needed to be with advice and consent of the senate

The Removal Power

  • Decision of 1789:
    • Madison wanted to give pres all authority to remove at will
    • Other theories were:
      • Remove by impeachment only
      • Pres remove with advise/consent of senate
      • Or let congress decide
  • If pres alone is to have removal power, where does it come from?
    • Vesting clause
    • Take Care clause
  • Congress decides is a big argument:
    • Congress has control over all other aspects of ex agencies (money, creation, etc), so why not also removal
    • And historically, there has been a lot of back and forth with people wanting Congress alone to have this power
  • Myers v. US
    • A strong decision in favor of giving Pres alone all the power to remove; found to be constitutional
    • Involved the removal of a postmaster (treated as a superior officer in ex branch)
    • Says Pres can remove both superior and inferior officers
    • The President has the exclusive power of removing executive officers of the US whom he has appointed by and with the advice and consent of the Senate. The ability of the president to control the personnel in administrative positions is central to the executive power. Taft felt that it was the framers intent to place the removal power in the president.
  • Humphrey’s Executor v. US
    • Limits Myers by holding that pres cannot remove officers of independent agencies
      • Justifies this because they are not solely ex in nature
    • The court said that Art. I allows Congress to create independent agencies and insulate their members fro presidential removal unless good cause for firing existed. The court said that officers in quasi-legislative or quasi-judicial positions are different and that Congress may limit the removal of these individuals.

The Take Care Clause

  • This justifies ex’s supervisory powers over the laws
  • Can ex. Branch suspend (not enforce at all) or dispense (only enforce with some people)?
    • The inclusion of the Take Care Cl in Const seems to show that Pres can’t just do these whenever he wants; must be faithfully executed
  • Wirt under Pres Monroe
    • Was hesitant to say that the pres has powers to direct people lower than him who are in executive; not practical and they answer to another person anyway in that department
  • Taney under Jackson?
    • Thought the pres did have plenty of supervisory powers to direct prosecutors to either prosecute or nolle pros.
  • US v. Cox
    • US Attorney, acting per instructions of US AG, did not draft or sign indictments which a grand jury requested
    • Court upheld this exercise of discretion
      • A lot of different reasons why in the concurring opinions, but it comes down to the policy reasons we would want an ex. With discretionary power to not prosecute (nonaction)
  • Adams v. Richardson
    • Court here orders a series of enforcement actions pursuant to Title 6 instructions
      • The agency discretion exception does not apply bc the law clearly and narrowly tells the ex. How to enforce the law, so ex. Must do so (action)
  • Thompson, DHS Authority to Prioritize Removal and Defer Aliens
    • Defends the Pres’s discretion to prioritize the removal of certain kinds of illegal immigrants over others, and the discretion to temporarily tolerate some of those aliens’ presences
  • Morrison v. Olsen
    • Upheld (over Scalia’s lone dissent) the independent counsel provisions of a statute which appointed someone from executive to be a special counsel in the judiciary branch, removable by AG after jumping through hoops like “good cause”
    • Found that the special counsel was an inferior officer, based on an importance kind of test, and thus could be appointed without the Const process
    • Scalia concluded that she was not inferior, and there could not be appointment without the process
    • Ct also held that the act did not violate the sep of powers either by encroaching on Pres’s removal power or by taking away Pres’s supervisory powers;
      • The pres could still remove special counsel through AG although the power was limited, and could also supervise the ex. Well enough although this limited it
      • Scalia of course found that sep of powers is such a big issue that this can’t possibly be const. Just because the special counsel is less important or the ex has to jump through hoops or policy demands it
    • Big idea is the tests for an inferior officer (remember the Buckley definition for a superior/principal officer as a contrast):
      • Majority: importance
        • Looks at person’s duties, scope of tenure and jurisdiction, whether they are a subordinate, etc
      • Scalia (in Morrison but refined in Edmunds): chain of command
        • Looks to see if they have a superior officer as a boss
      • On exam:
        • Ask if person is inferior or principal, then see if Congress has delegated a princ. Officer in an unconst way

Take Care Clause Elements

  • The President
    1. “Shall” execute laws
    2. Must act with “care”
    3. Object is “law” passed by Congress
    4. Must act in good “faith”
  • Take Care duty means that presidents do not have power to suspend or dispense with any laws.
  • President can veto bill for policy reasons, but cannot decline to enforce a law he disagrees with for policy reasons.
    • 3 exceptions
      • Statutes that give political discretion to President or subordinate officers are ambiguous (Chevron Doctrine)
      • President prosecutorial discretion (limitations?)
      • If President (in good faith) believes a law is unconstitutional

Foreign Affairs

  • Art 2; Sect 1, 2, and 3
  • The powers given to pres are to make treaties (with congress), to be commander in chief, to appoint ambassadors (with congress), and to receive ambassadors and other public ministers
  • So some of the foreign affairs powers are in art 1 with congress; what about powers that aren’t mentioned? Are they inherent in ex or limited bc framers set out the dichotomy between the ex and the leg?
  • We should start with Article 2, the Vesting Clause, and then see what else Art 2 gives the Pres and what Art 1 gives Congress or that Congress lacks
  • Neutrality Controversy
    • Pres Washington wanted to declare neutrality, and did so by proclamation, instead of helping France in their war with England; the issue was that it seemed like a legislative function without congress, who has the power to declare war, help make treaties, etc; so this is unilateral foreign affairs power
    • Hamilton, as Pacificus, supported this as inherent in Vesting Clause and the powers given to Pres in sect 2
    • Madison, as Helvidius, opposed the proclamation, arguing that it is a legislative fxn
  • Can pres unilaterally terminate a treaty?
    • Approaches:
      • Yes, with consent of senate (which it needed to pass anyway)
      • Yes, unilaterally
      • Depends on what the treaty itself allows
  • US v. Curtiss-Wright Export Corp
    • FDR issued a proclamation pursuant to a law which allowed pres to decide to make illegal the selling of guns/warfare to countries if he thinks making it illegal would promote peace
    • This company sold weapons to countries at war in South America, violating this proclamation
    • FDR then issued another proclamation, ending the first one but keeping the prosecutions for violating it will it was in effect
    • Court held that the proclamation is not an unconstitutional delegation of legislative power
      • While the court is okay to assume it would not be const if it concerned internal affairs, the pres has broad discretion and lots of power when it comes to foreign affairs
      • It is inherent in the ex branch!!
    • Case talks about theory that the national executive power with respect to foreign affairs was not delegated to the federal government by the States but was instead transferred from the United Kingdom to the United States when the United States became an independent nation. Under this theory, the United States may exercise not only the powers that the Constitution expressly grants, but also other foreign affairs powers enjoyed by all sovereigns.
  • Zivotofksy; Reception Clause, Art 2, Sect 3
    • The court held that the Pres does have exclusive power to grant formal recognition to foreign sovereigns by changing State policy to put only “Jerusalem” on passport and consular report of birth (instead of “Israel,” as Congress had mandated by law), and Congress cannot demand through legislation that the Pres issue a formal statement that would contradict his earlier recognition
    • So the court here limits the Pres’s powers from Curtiss-Wright (in the opinion, it says that the Pres’s argument that Curtiss gives it ALL executive power is not right), but still says that the Pres had this power to go against Congressional law; the dissent would say that it isn’t even a recognition issue, but a naturalization issue under Art 1, Sect 8 so Pres cannot have power to go against it
    • 3 ways that we could hold the statute here unconstitutional:
      • The policy on Jersulem is an unenumerated power (so inherent) in the Pres’s Vesting Clause so Congress cannot regulate this
      • The policy is a specific power (enumerated) under the Reception Clause so Congress can’t regulate it; OR
      • There is no enumerated power in Congress’s article so it simply lacks the power all around to do anything about it
  • Trump immigration materials
    • Original 9th circuit opinion on Presidential authority seemed to lack any real substance grounded in constitutional law
    • Focused much more on DP and the 1st Amendment
    • Justice Bybee would ground the authority on precedent (Mandel and Knauff and Din), and the statute (the Immigration and Naturalization Act of 1952 which gives Pres the authority to do this, and in art 2, Sect 2 (comm in chief), Sect 3 (reception clause), and the Take Care Cl sect 3
    • Mandel held that if the Pres’s exercise of discretion is on its face for a bonafide and legitimate reason, then the court will not look behind that exercise of discretion; 9th circuit said this was inapplicable but had no real logic there
    • Criticism on the 9th opinion, see notes
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