Breedon_ConLaw_Fall2019

SEPARATION OF POWERS
Basic Separation of Powers Concepts

• Allocation of Power
Where each branch derives their power:
o Legislative - Article I
o Executive - Article II
o Judiciary - Article III
Vertical allocation

Federal form of government

Federal government has some power but the states each individually have power as well.
o Opposite of what Madison calls a "National Government" where there is a central government that subsumes all the states.
o Exclusive federal powers include coining money and regulation of the value of the money.
Exclusive state powers

Regulating intrastate commerce

Providing for public safety, health, and welfare within the state.
Shared (Concurrent) Powers

Eminent domain

Power to establish courts

Taxes
Separation of powers (tool for preventing tyranny)
o Vertically: federalism/dual sovereignty

Horizontal: checks and balances (i.e. legislative functions of Congress)
Federal government of limited (enumerated) powers

Legislative branch can impeach president and other officials.
 Can also declare war, fund war, and override presidential veto
Only Commander-in-chief can conduct the war, pardon felonious individuals, veto acts of congress, etc.
Popular sovereignty: 9th amendment - we the people

• Types of Constitutional Arguments
Arguments relevant a prescriptive (what you think should be done) and descriptive (description of what should be done).
Textual

Article 1, § 1, Clause 5 - President must be 35 years old (clear) v. President must be natural born citizen (open to more interpretation)
o Definition of "natural born" i.e. does U.S. Territory count?
Historical Context

Original intent of the framers

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Subjective intent of drafters that ought to be given substantive weight.
 Must also consider original intent of ratifiers
 James Madison Federalist #43 referred to Constitution as a suggestion.
o Original Public Understanding
 Should seek meaning ordinary citizens would have given constitution
- normal educated citizen
 Difficulty still remains
 What is the meaning and to what extent should it be conclusive?


Structural
Considered holistically
Representatives should be accountable of the people they govern
Subdivide authority at federal level between three levels of government
Federalism and separation of powers do not appear explicitly in the constitution, but they are central to its meaning.
Precedent and Past Practice

Stare decisis - fundamental

Act on reliance of settled rules

Provides for uniformity and predictability in the law

Past practice looks beyond judge made rulings, looks to past practice of other branches
Policy

• Youngstown (Steel Seizure Case)
Where this power to seize may have been drawn from:
o Constitution  Article II
 Express provision
 Implied power under an express provision
 Constructive/inherent

Statutes
 Express
 Implied
 Congressional silence/acquiescence
 Prohibition

Past Practices
 How congress responded - court states that congress had authority to give permission, but does not state where this power comes from.
Government's argument:
o Commander in chief has power in military over the Armed Forces.
 No to this argument because we are not in a "theater of war" - war is in Korea, not the US
o Take care clause

o

o

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The vesting clause: executive power shall be vested in certain executive powers (aka the president /unitary executive)
 Certain executive powers are given by constitution and precedent,
president has full authority to use those powers.
 No law to execute/authorize president to act as he proceeded to seize the steel mills.
Justice Jackson's Separation of Power Case Classifications

1. The president's power is at its zenith when Congress has authorized the conduct.
 President can only lose if Congress outlaws act that they previously approved.
 Executive action occurs with explicit or implicit congressional authorization (EP + CP = greatest power/highest deference)
o 2. Twilight Zone - when Congress is silent; the gray zone.
 When Congress is silent, depends on "the imperative of events and contemporary imponderables."
 Executive action occurs in a circumstance of congressional silence
(Individual EP, or EP concurrent with CP, or power distribution is uncertain = intermediate power/deference, context specific)
o 3. President's power is at its lowest ebb.
 Must be scrutinized with caution; action will be upheld only if found to be under President's exclusive power minus the Congressional interlocking powers.
 Power must be conclusive and preclusive - in President's domain and outside of Congress's authority.
 Executive action directly conflicts with express or implied will of
Congress (EP, (Conclusive and Preclusive) - CP = Lowest power/deference).
Youngstown falls under third tier (lowest ebb) - "where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject."

• Zivotofsky v. Kerry
Question of first impression - whether executive has power to ignore act of the legislature.
At lowest ebb because Congress has given a statute that states how the executive should act and the executive is refusing to listen.
First case of foreign affairs that upholds the action taken by the executive.
214(d) - president has exclusive power over recognition.
The Receptions Clause - Article II; is the text that gives the president the power to recognize foreign sovereigns.
Even though it is not an express/explicit power, it still cannot be regulated by Congress

In this case, it flows from power to receive ambassadors.

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• INS v. Chada
Particular provision allowed one house to overrule the attorney general's provision to allow a particular deportable alien to remain in the US.
When a foreign national enters the country with a valid visa, but overstays, he is subject to deportation. The Immigration and Nationality Act allowed someone in this situation to apply to extend their stay. (application for suspension of deportation)
Immigration Judge submits report of deportation proceedings through attorney general who brings it to Congress
Must meet three criteria to stay:
o Be in the country for 7 years

Have good moral character

Familial hardship
Override occurred over immigration which Congress has plenary power over.
SCOTUS held legislative vetoes unconstitutional

Grounds: unconstitutional because they are congressional lawmaking that do not comply with article I § 7's rules for how a bill becomes a law.
o Article I § 7: "every bill which shall have passed the house and the senate shall, before it becomes a law, be presented to the POTUS; if he approves he shall sign it…"

Legislative Veto/Bicameralism 9th circuit says legislative veto is unconstitutional, SCOTUS agrees.
Legislative acts require bicameralism and presentment.
o Bicameral requirement of Article I § 1 Clause 7 4 times in Constitution where Bicameralism is not necessary:
o House given power to initiate impeachment

Senate power to conduct trial following impeachment and convict

Senate power to approve/disprove Presidential appointments

Senate power to ratify treaties negotiated by president.
A severability clause creates a presumption that congress intended the valid portion of the statute to remain in force when one part is found to be invalid.
Bicameralism - having two branches, chambers, or houses as a legislative body.
Presentment - written notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them.
Legislative Veto - congress sought to control, or check, its own delegations to the executive by adding the condition that one house or both houses could veto any actions that the executive branch took pursuant to the delegation.
Presidential veto may be overridden but only by a 2/3 majority of both houses.
o Chada holds that congress cannot accomplish a change in the law other than by this process.

Executive Privilege
Refers to the ability of the president to keep secret conversations with or memos to or from advisors.
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There are certain kinds of communications that another branch cannot compel the executive to share.
Not explicitly given in the constitution
Apparent from Washington's time.

• U.S. v. Nixon
Court did recognize a constitutionally based privilege of communication between the president and his advisors.
o This is not an absolute privilege, only a qualified privilege.
There are a number of subjects that are not subject to this privilege, but Congress does not recognize them all.
Categories:
o Presidential communications

Deliberative proceedings

Law enforcement

Military secrets

National security issues

Attorney-client privilege
Executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case.
o A president's decision is final in determining what evidence is to be used in a given criminal case.
Baker v. Carr - involves a "textually demonstrable" grant of power under Article II.
Article II § 2: Congress has vested in the Attorney General the power to conduct the criminal litigation of the US government.
With authorization from the president, AG provided in the regulation that the special prosecutor was not to be removed without the "consensus" of 8 designated leaders of
Congress.
Legal test in this situation - a balancing test, to some extent are inherently subjective - in this case, judicial process must be balanced against presidential nondisclosure.

Executive Power
There are explicit grants of power given to the executive branch through the Constitution

i.e. Commander-in-chief power
Four major sources of executive power:
o Constitution

Vesting clause of Article II can be said to give executive power.
 Not explicit but can still be seen as implicit enumerated power.
 Foreign v. domestic affairs

When Congress delegates power to the executive.
 Can be done implicitly or explicitly
 Statutory enactments, ratified treaties.
o Congressional enaction

Judicial Power - Article III
§ 2, Clause 2 5 Breedon_ConLaw_Fall2019

Constitution grants original jurisdiction to Supreme Court.
 Article describes structure of federal judiciary

9 categories of cases and controversies federal judicial power extends to:
 First 3 categories = cases
 Lawsuits with national law or authority - presenting issue of federal statutory, treaty, or Constitutional law
 Cases affecting ambassadors
 Matters of admiralty or maritime jurisdiction
 Next 6 are controversies - defined by parties to the suit
 Suits between citizens of different states
 Suits involving foreign states.

Boundaries of Legitimate Exercise of Judicial Authority
Courts will not render "advisory opinions" outside context of an actual dispute between parties with something at issue.
Parties in a dispute must have a real legal interest at stake giving them "standing" to sue.
o Something must turn on court's opinion

Ex Parte Levitt

U.S. v. Windsor
 3 Part Lujan Test to Determine Standing:
 (1) injury in fact - invasion of a legal protected interest which is (a) concrete and (b) actual or imminent, not conjectural or hypothetical.
 (2) Causation - injury fairly traceable to challenged action of ∆
and not the result of independent action by third-party not before the court.
 (3) Redressability - likelihood (as opposed to mere speculation) that injury will be redressed by favorable decision of the court.
 Article III Standing considerations MUST be met.
Dispute must be sufficiently immediate, not remote and distant - case must be "ripe"
o Case must be mature for resolution

Test:
 (1) Hardship to parties if case is not heard.
 Enforcement is certain but hasn't yet begun
 Collateral injuries resulting in substantial hardship
 (2) Fitness of issues and record for Judicial Review
Dispute must remain a live one at all stages of the proceeding; if the conflict between the parties ever disappears, the case is "moot"
o All stages of federal court litigation

If π's injury ends during pendency of lawsuit, the case is to be dismissed as moot.
 Criminal ∆ dies where cause of action does not survive death
 Parties settle dispute 6 Breedon_ConLaw_Fall2019
 Challenged law repealed or expires

Exceptions:
 Collateral consequences to injury remain
 Injury is capable of repetition but evading review
 Where ∆ has voluntarily ceased its alleged wrongful conduct but remains free to resume it later.
Parties legal interest must be genuinely in conflict, or "adverse," and legal dispute must not be contrived, feigned, or collusive.
o Justice Scalia and Alito's dissents in Windsor

No Collusion (Windsor) - Prudential Limitation

Political Question Doctrine
Pertains to the "what" in lawsuits that are justiciable.
Says that certain questions cannot be heard at any time.
Judicial power does not extend to political questions (matters that constitution appears to leave to political judgment or discretion)

• Luther v. Borden
Court says that this is a non-justiciable question
"it rests with congress to decide what government is the established one in a state."
President seems to have sided with charter government, so court must also side with charter government.
Court does not represent a political question just because it is political.

• Nixon v. U.S.
Senate has power to decide whether or not to try impeachment
Not a case determined on the merits, the issue here is a political question and non-justiciable.
o Not a case suitable for court resolution

• Baker v. Carr - Test for determining political questions:
A controversy is non-justiciable (i.e. involves a political question) where:
o Constitution itself answers the question; or

A lack of judicially discoverable and manageable standards for resolving it; or

Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial determination; or

Impossible for court to take on without expressing a lack of respect due coordinate branches; or

Unusual need for unquestioning adherence to political decision already made; or

Potential for embarrassment from multifarious pronouncements by various departments on one question.

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