Separation of Powers

Basic Separation of Powers Concepts

Allocation of Power

Where each branch derives their power:

• Legislative – Article I

• Executive – Article II

• Judiciary – Article III

Vertical allocation

• Federal form of government

• Federal government has some power but the states each individually have power as well.

• Opposite of what Madison calls a “National Government” where there is a central government that subsumes all the states.

• 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)

• 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: 9^th 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)

• Definition of “natural born” i.e. does U.S. Territory count?

Historical Context

• Original intent of the framers

  • 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.

• 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:

• 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:

• 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

• Take care clause

• 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)

• 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)

• 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.

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...

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