Constitutional Law I Separation of Powers - I March 29, 2005 Fall, 2004Con Law I - Manheim2 Introduction to Separation of Powers 3 co-equal branches of government Art. ICongress Makes Law Art. II Exec. - Executes (administers) the law Art. III Judicial - Interprets and applies the law Why this separation? Enhances liberty Checks and balances Stability in government Fall, 2004Con Law I - Manheim3 Theoretical & Historical Origins Marchamont Nedham, Excellencie of a Free-State (1656) An Errour in Policy hath been this, permitting of the Legis- lative and Executive Powers of a State, to rest in one and the same hands and persons. By the Legislative Power, we mean the Power of making, altering, or repealing Laws. The Reason is evident; because if the Law-makers should be also the constant Administrators and Dispencers of Law and Justice, then (by consequence) the People would be left without Remedy, in case of Injustice. Fall, 2004Con Law I - Manheim4 Theoretical & Historical Origins John Locke, Second Treatise of Govt (1689) The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be imploy'd for preserving the Community and the Members of it [but] the same Persons who have the Power of making Laws, [should not] have also in their hands the power to exe- cute them, whereby they may exempt them- selves from Obedience to the Laws they make Fall, 2004Con Law I - Manheim5 Theoretical & Historical Origins Charles Louis de Secondat, Baron de la Brede et de Montesquieu, Spirit of the Laws (1748) "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or "if the power of judging be not separated from the legislative and executive powers" Check outofpowers.net/ Fall, 2004Con Law I - Manheim6 Influencing the Constitution John Adams, Thoughts on Govt (1776) A representation of the people in one assembly being obtained, a question arises whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one Assembly. Madison, Records of the Federal Convention (1840) The Legislative, Executive, & Judiciary departments ought to be made as independt. as possible One source of stability is the double branch of the Legislature. The division of the Country into distinct States formed the other principal source of stability. Fall, 2004Con Law I - Manheim7 Influencing the Constitution Madison, Federalist 47 (1788) No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than this: the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Fall, 2004Con Law I - Manheim8 Themes in SoP Incomplete separation The constitution is full of instances where a power is shared between 2 branches Encroachment A power constitutionally assigned to one branch alone may not be exercised by another Interference One branch may not obstruct another in the performance of its constitutional powers Formalism Form must be observed, esp. by Congress Fall, 2004Con Law I - Manheim9 SoP Matrix CongressPresidentFederal Courts Legislative Strict Formalism Flexible & Functional Strict in theory; loose in practice Executive ForbiddenAnything goes Rare Judicial ForbiddenGenerousNominally strict (justiciability stds) Fall, 2004Con Law I - Manheim10 Art. II Executive Power Sources of Executive Power Art. II 1, 1: The executive Power shall be vested in a President of the United States of America. 2, 1: The President shall be Commander in Chief.. have Power to grant Reprieves & Pardons.. 2, 2: make treaties and appointments 2, 3: Power to fill up all Vacancies 2, 4: recommend laws to Congress; receive ambassadors, and shall take Care that the Laws be faithfully executed. Fall, 2004Con Law I - Manheim11 Art. II Executive Power Sources of Executive Power Art. II 1, 1: The executive Power shall be vested in a President of the United States of America. Commander in Chief 2, 1: The President shall be Commander in Chief.. have Power to grant Reprieves & Pardons.. make treaties and appointments 2, 2: make treaties and appointments 2, 3: Power to fill up all Vacancies receive ambassadors 2, 4: recommend laws to Congress; receive ambassadors, and shall take Care that the Laws be faithfully executed. The Presidents national security & diplomatic powers (head of state) Fall, 2004Con Law I - Manheim12 Art. II Executive Power Sources of Executive Power Art. II 1, 1: The executive Power shall be vested in a President of the United States of America. 2, 1: The President shall be Commander in Chief.. have Power to grant Reprieves & Pardons.. 2, 2: make treaties and appointments 2, 3: Power to fill up all Vacancies recommend laws to Congress 2, 4: recommend laws to Congress; receive ambassadors, and shall take Care that the Laws be faithfully executed. Law-making power; see also Art. I, 7, 2 (presentment) Fall, 2004Con Law I - Manheim13 Art. II Executive Power Sources of Executive Power Art. II executive Power 1, 1: The executive Power shall be vested in a President of the United States of America. 2, 1: The President shall be Commander in Chief.. have Power to grant Reprieves & Pardons.. 2, 2: make treaties and appointments 2, 3: Power to fill up all Vacancies take Care that the Laws be faithfully executed 2, 4: recommend laws to Congress; receive ambassadors, and shall take Care that the Laws be faithfully executed. Depends upon legislation; there- fore congress nominally controls it Fall, 2004Con Law I - Manheim14 Art. II Executive Power Sources of Executive Power Core Art. II powers Delegated power (i.e., legislation needing implementation) Inherent power? What if the constitution omits something important, like protecting the US from immin- ent invasion or insurrection? open-ended nature of Art. IIs grant of executive power power flowing from our status as a sovereign nation Fall, 2004Con Law I - Manheim15 Steel Seizure Case - Timeline June 28, 1950 Korean War starts June 30 US enters the war 1952 Truman imposes wage & price controls, leading to labor unrest April 4 Steelworkers Union announces strike for April 9 April 8 Truman issues Executive Order and addresses nation Y Fall, 2004Con Law I - Manheim16 Steel Seizure Case - Timeline Between April 17, 1945, and August 27, 1946, Truman had seized 28 other industrial propertiessometimes entire industries, such as the railroads and the meat packersin labor disputes. Because he opposed the Taft-Hartley Act, which Congress had passed it over his veto in He did not ask Congress to authorize his seizure of the steel industry. Fall, 2004Con Law I - Manheim17 EXECUTIVE ORDER WHEREAS American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea WHEREAS steel is indispensable to [the war effort] WHEREAS a work stoppage would immediately jeopardize and imperil our national defense NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: 1. The Secretary of Commerce [shall] take possession of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. HARRY S. TRUMAN, THE WHITE HOUSE, April 8th, 1952 Fall, 2004Con Law I - Manheim18 Youngstown Steel v. Sawyer (1952) What power does Truman exercise here? Executive power? take care that the laws be faithfully executed What law is the President executing? No statute authorizing seizure in strike situation Congress rejected this in Taft-Hartley Act (1947) But authorized courts to issue temporary injunctions Commander-in-chief? Broad interpretation: anything related to military Narrow interpretation: theater of war operations Example: Lincolns emancipation proclamation Domestic actions and foreign wars? What limits during an era of permanent war? Fall, 2004Con Law I - Manheim19 Youngstown Steel v. Sawyer (1952) What power does Truman exercise here? Inherent? Extra-constitutional powers? Federal govt enjoys power of national sovereignty (incl. defense) whether included in const. or not. Difference between federalism and SoP Attributes of national sovereignty defaults to US no SoP default rules National defense Teddy Roosevelt: "The president is steward of the people. It was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the const. or by the law. Fall, 2004Con Law I - Manheim20 Youngstown Steel v. Sawyer (1952) war power Closer examination of war power Congress has power to declare war (Art I, 8, 9) i.e., the power to make policy As C-I-C, President is first general i.e., the power to execute congress war policy and to direct war operations themselves Was Korean War a declared war? Would it matter if it were? Fall, 2004Con Law I - Manheim21 Justice Blacks Strict Approach Unless Trumans action is found within his Article II powers, it is unconstitutional Executive Power this is not equivalent to Kings royal prerogative not an independent grant of power Take Care there must first be a law passed by congress the seizure was itself legislative in character as can be seen by its preamble, setting forth policy also, seizure commits US to payment of compensation C-I-C domestic effects not within C-I-C powers Fall, 2004Con Law I - Manheim22 Douglas' Cautionary Approach Emergency does not create power; it only provides an occasion for use of power SoP adopted not to promote efficiency, but to use the inevitable friction to safeguard liberty Seizure by President ties Congress's hand on implementation of policy Commits the US to payment of compensation Fall, 2004Con Law I - Manheim23 Frankfurters Flexible Approach Const provides framework, not a rigid code 3 branches are interacting, not disjointed Dynamic interpretation of the constitution Const. law is not "confined to the words of the Const., disregarding the gloss which life has written upon them." Power may accrete from congress to president over time as former acquiesces in unilateral action almost a common law version of the constitution but can be overridden by specific congressional action reclaiming its delegated authority which is what happened in this case because congress had specifically denied Truman authority to seize factories Vinson dissent sees no specific prohibition on Pres. Action Assent seen from cong'l appropriations. Fall, 2004Con Law I - Manheim24 Jacksons Structured Approach SoP is misnomer; branches act in concert separateness, but interdependence autonomy, but reciprocity Interaction between Congress & President 1.Congress authorizes, triggering executive power President possesses all his own powers, plus Any power congress has validly delegated to him 2.Congress remains silent President possesses express & implied powers those stated in 2 plus those he shares with congress 3.Congress rejects presidential power Pres has only Art II power, minus shared powers those that congress may not take away from him Fall, 2004Con Law I - Manheim25 Jacksons 3-Zone test endures Zone 1: Approval President acts w/ congressional authority Presidential action is invalid only if federal govt as a whole lacks power in this area (federalism) Zone 2: Silence (twilight zone) Congress neither approves nor disapproves Balance need for unilateral presidential action against damage to const'l rights and structure other imperatives and imponderables of events Zone 3: Disapproval President acts despite congress disapproval Valid only if w/in Art. II (or approved inherent power) Fall, 2004Con Law I - Manheim26 Jackson's eloquy on SoP "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." Robert Jackson was chosen by President Harry S Truman in 1945 to be the Chief Prosecutor for the United States at Nuremburg What ever happened to Youngstown Sheet & Tube Fall, 2004Con Law I - Manheim27 Inherent Power: Executive Privilege The demand for executive information A 2-fold Separation of Powers problem Judicial inquiry into executive actions could interfere with performance of const'l duties Executive refusal to provide evidence could interfere with judicial (or legislative) functions. Fall, 2004Con Law I - Manheim28 United States v. Nixon (1974) Subpoena to President to turn over tapes for use in criminal trial Justiciability (political question) Is there a textually demonstrable constitutional commitment of the question (whether executive privilege applies) to the President? Does President have power to decide this issue Does he have discretion (final decisionmaking power) If so, then the President could direct the action of the Special Prosecutor on this issue So-called "intra-branch dispute" If not, Court must decide the issue - Marbury Fall, 2004Con Law I - Manheim29 United States v. Nixon (1974) Executive Privilege on the merits Absolute (applies in all cases) Qualified (applies in some cases including here) Absolute Privilege Assures confidentiality of exec. Communications Assures independence of separate branches Qualified Privilege Need for confidentiality might occassionally outweigh 6 th Amd. and judicial right to evidence Balance can be accommodated in camera Fall, 2004Con Law I - Manheim30 United States v. Nixon (1974) Should Nixon have Qualified Privilege here? "Generalized" need for confidentiality, not national security or diplomatic secrets Will presidential advisors withhold advice (thereby impeding executive functions) without confidentiality Balance against "fair administration of justice" What function is the S.Ct. performing here? Deciding whether const. provides privilege? Making common law? Privilege vs. Immunity Evidence vs. Liability Fall, 2004Con Law I - Manheim31 Cheney v. Dist.Ct. (2004) Claim: energy task force failed to comply with FACA open meeting and disclosure reqs Exclusive fed employee committes are exempt Alleged: oil industry lobbyists were de facto members District Court FACA could be applied against VP Rejected bare SoP defense Allowed limited discovery Normally non-appealable order Fall, 2004Con Law I - Manheim32 Cheney v. Dist.Ct. (2004) Court of Appeals Rejects Mandamus (extraordinary writ) Not an extraordinary case President can invoke Exec. Privilege. What result? Supreme Court This is an extraordinary case (based on SoP) Interference with Constl Duties? Balance in favor of disclosure less than in Nixon Statutory vs. constitutional rights at stake Remand to Ct.Appeals Consider legal issues before deciding mandamus Consider overbreadth of discovery requests? Fall, 2004Con Law I - Manheim33 Fall, 2004Con Law I - Manheim34 Excessive Complicity Can congress give too much power to Pres? Per Jackson, Congress enlarges executive power by delegating authority (Zone 1) Per Frankfurter "gloss," power accrets to Pres through congressional inaction and acquiesence Any limits on the power that congress can delegate? Fall, 2004Con Law I - Manheim35 Clinton v. New York (1998) Line Item Veto Act 2 U.S.C. 691: the President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, cancel in whole-- 691(b): Cancellation becomes null & void if overriden by Disapproval Bill (1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit; Fall, 2004Con Law I - Manheim36 Clinton v. New York (1998) Relevant Constitutional Provisions Art. I, 8, 1: "The Congress shall have Power to pay the Debts and provide for the common Defence and general Welfare" Art. I, 9, 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law Art. I, 7, 2: Every Bill which shall have passed the House and the Senate, shall, before it becomes a Law, be presented to the President Fall, 2004Con Law I - Manheim37 Clinton v. New York (1998) Cancelled appropriations Bal. Budget Act of 1997: $2.6B medicare funds to NY Taxpayer Relief Act of 1997: corporate tax benefit Justifications for Line Item Veto LIV is merely a delegation of power to Executive to decline to spend (as President sees fit) valid only pursuant to prescribed standard (cong. policy) President may have impoundment power (Train v. NYC): LIV is simply package of separate spending bills each of which President could have vetoed reality of budget process is mutuality / reciprocity practicality not a concern - Court employs formalism Fall, 2004Con Law I - Manheim38 Clinton v. New York (1998) LIV violates Presentment Clause President has amended two Acts of Congress by repealing portion of each. Cancellation not the same as "return" of a bill Return (regular veto) prevents a bill from becoming law Here, cancellation effective only after bill becomes law Fall, 2004Con Law I - Manheim39 SoP Principles in LIV Strict Formalism idealized vision of political process (Kennedy) resurrects non-delegation doctrine SoP not violated in traditional manner LIV is practical mechanism for complex spending Jackson in Youngstown: Doesnt usurp or aggrandize any branchs powers Fall, 2004Con Law I - Manheim40 y Slide 26Slide 15