Outline: Constitutional Law I - Government - VI - Separation of Powers

Constitutional Law I - Government (Spring 2006, Burcham)

VI. SEPARATION OF POWERS

1. Presidential Powers
   1. Executive may not assume legislative functions [Youngstown Sheet & Tube Co. v. Sawyer – Where Congress rejected proposed legislation, President may not act as if it was passed]
      1. Acting under express or implied Congressional authorization, President’s authority is at maximum, includes all independent powers, plus all that Congress may delegate.
      2. Acting in absence of Congressional denial or grant of authority, President has independent powers, but may have concurrent or uncertainly distributed authority with Congress. [Dames & Moore v. Regan]
      3. Acting at odds with expressed or implied will of Congress, President’s authority is at lowest ebb, has constitutional powers less those constitutional powers of Congress over the matter. [Youngstown Sheet & Tube Co. v. Sawyer]
   2. Failure of Congress to anticipate and legislate for every possible action does not imply disapproval. [Dames & Moore v. Regan – Executive Order releasing frozen Iranian funds in exchange for release of American hostages within President’s power]
2. War Powers
   1. President may not declare war, but may call out militia and use military forces in case of invasion or rebellion. [The Prize Cases – President had authority to institute blockade of southern ports which neutrals were bound to respect]
   2. War Powers Act – Act which requires Congressional approval for military engagements beyond 60 days, has been deemed unconstitutional by all Presidents, and is still at issue. [Mora v. McNamara]
   3. Writ of Habeas Corpus may not be suspended by President, even in war time. [Ex parte Quirin, Hamdi v. Rumsfeld]
3. Line Item Veto – Congress may not delegate legislative powers to Executive. [Clinton v. City of New York]
4. Presidential Prerogatives
   1. Legislative Veto – Inclusion of one-House Congressional veto in statute delegating authority to executive and independent agencies violates Presentment Clause. [I.N.S. v. Chadha]
   2. Appointments – Statute establishing Office of Independent Counsel, by allowing Attorney General to remove Independent Counsel “for good cause”, does not completely strip Executive power, and does not violate separation of powers.
5. Presidential Immunities
   1. Criminal proceedings – Where special prosecutor has complied with rules of criminal procedure, President may be compelled to produce subpoenaed evidence for examination in camera; there is no violation of President’s general privilege of confidentiality. [U.S. v. Nixon]
   2. Civil proceedings – Presidential immunities cover only official conduct, not personal conduct, particularly before assumption of office; civil trial may not be postponed, as President does not need to appear in person at court. [Clinton v. Jones]