Separation Of Powers Outline

Separation of Powers

Courts & Executive

• Should there be a non-justiciable political question?

• Should court try to resolve these complicated issues?

• Should the court let other brances resolve the issues and not enter?

• Think about how the cases fit into the 14A…

Youngstown Sheet & Tube Co. v. Sawyer (1952)

• (Recall Marbury and declining advisory opinions; tone of S. Ct. to Prez)

• 6-3 Decision. Korean war, and steel mill strike

• Taft-Hartley bill rejected an amendment to give president emergency powers.

• Court on accelerated timeline: April 9 Strike -> May Argument -> June 2 decision

• Black Majority: 2 possible statutes but Truman used neither. No implied power for executive to seize private property during war time..

  • Formalist interpretation of executive power and constitution.

• FFF Concurrence: more flexible account of constitutional interpretation.

  • Could be a “gloss” on Constitution if Congress hadn’t been so explicit in rejecting the possibility.

• Jackson: Masterpiece of Constitutional law.

  • Functionalist, not formalist.

  • Judging calls for judgment.

  • Tri-parthied theory:

    • (1) Cases in which the President was acting with express or implied authority from Congress

    • (2) Cases in which Congress had thus far been silent

    • (3) Cases in which the President was defying congressional orders

      • Here, president acts with the lowest level of legitimacy.

      • (PROF: Could arguably be #1 or #2 because Congress said nothing, and Truman asked)

  • Queasy about undeclared wars.

  • Points to other countries’ systems. Worried about power grabs by executive.

• CJ Vinson Dissents: rejects “messenger boy” theory of executive power. Sees Truman in Jackson’s category #2.

United States v. Nixon (1974): 8-0 opinion

• Criminal case, subpoena on President Nixon. Claims executive privilege (Aids have to be honest/open in their job)

• Branches cannot share power: the judiciary and executive have explicit domains. [Is that actually true?]

• Executive privilege not in Constitution, but relates to executive’s power and can be Constitutionally based

  • Is it absolute or qualified? Subject to judicial review?

  • Marbury: Branches have obligation to Constitution, Judiciary must uphold Due Process and Criminal Process

• Executive must follow the law.

• Commentary

  • Echoes of Youngstown – speed & zealousness of the Court. Congressional impeachment was ongoing.

  • Should Court play referee on political questions?

  • Stood up to the president.

  • Should President be at the whim of a District Court?

Nixon v. Fitzgerald (1982): 5-4

• President is immune from civil liability based on his official acts; not immune from Criminal liability.

Clinton v. Jones (1997): Unanimous

• Supreme Court not grant a delay of a civil case on issues from before he took office.

• Wouldn’t affect President’s job

  • Is that true?

Reconciling these two:

• maybe Fitzgerald and Clinton are both wrongly decided?

  • Active vs. retired president

  • Clinton eligible for Anti-canon? An obtuse quality to say “Oh, he’s just a president”

• Do Courts treat Congress vs. Prez controversies different than Prez v. Judiciary?

Impeachment:

• Article II § 4: High crimes and misdemeanors

  • Crimes: Treason, Bribery, HC/D.

  • What is...

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