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Law Outlines > Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines
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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.. o Formalist interpretation of executive power and constitution.
? FFF Concurrence: more flexible account of constitutional interpretation. o Could be a "gloss" on Constitution if Congress hadn't been so explicit in rejecting the possibility.
? Jackson: Masterpiece of Constitutional law. o Functionalist, not formalist. o Judging calls for judgment. o 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) o Queasy about undeclared wars. o 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 o Is it absolute or qualified? Subject to judicial review?
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