Constitutional Law I
Separation of Powers - I
April 7, 2006
Introduction to Separation of Powers
3 co-equal branches of government
Art. I Congress – Makes Law
Art. II Exec. - Executes (administers) the law
Art. III Judicial - Interprets and applies the law
Why this ―separation‖?
Enhances liberty
Checks and balances
Stability in government
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Theoretical & Historical Origins
Marchamont Nedham, Excellencie of a Free-State (1656)
An Errour in Policy hath been this, permitting of the Legis-
lative and Executive Powers of a State, to rest in one and
the same hands and persons. By the Legislative Power, we
mean the Power of making, altering, or repealing Laws.
The Reason is evident; because if the Law-makers should
be also the constant Administrators and Dispencers of Law
and Justice, then (by consequence) the People would be
left without Remedy, in case of Injustice.‖
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Theoretical & Historical Origins
John Locke, Second Treatise of
Gov’t (1689)
―The Legislative Power is that which has a right
to direct how the Force of the Commonwealth
shall be imploy'd for preserving the Community
and the Members of it [but] the same Persons
who have the Power of making Laws, [should
not] have also in their hands the power to exe-
cute them, whereby they may exempt them-
selves from Obedience to the Laws they make
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Theoretical & Historical Origins
Charles Louis de Secondat, Baron de la Brede
et de Montesquieu, Spirit of the Laws (1748)
"there can be no liberty where the legislative and
executive powers are united in the same person, or
body of magistrates," or "if the power of judging be not
separated from the legislative and executive powers"
Check out
http://www.separation
ofpowers.net/
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Influencing the Constitution
John Adams, Thoughts on Gov’t (1776)
―A representation of the people in one assembly being
obtained, a question arises whether all the powers of
government, legislative, executive, and judicial, shall be
left in this body? I think a people cannot be long free, nor
ever happy, whose government is in one Assembly.‖
Madison, Records of the Federal Convention (1840)
―The Legislative, Executive, & Judiciary departments
ought to be made as independt. as possible … One source
of stability is the double branch of the Legislature. The
division of the Country into distinct States formed the
other principal source of stability.‖
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Influencing the Constitution
Madison, Federalist 47 (1788)
―No political truth is certainly of greater intrinsic
value or is stamped with the authority of more
enlightened patrons of liberty than this: the
accumulation of all powers legislative, executive and
judiciary in the same hands, whether of one, a few or
many, and whether hereditary, self appointed, or
elective, may justly be pronounced the very definition
of tyranny.‖
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Themes in SoP
Incomplete separation
The constitution is full of instances where a
power is shared between 2 branches
Encroachment
A power constitutionally assigned to one branch
alone may not be exercised by another
Interference
One branch may not obstruct another in the
performance of its constitutional powers
Formalism
Form must be observed, esp. by Congress
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SoP Matrix
Congress President Federal Courts
Legislative Strict Flexible & Strict in theory;
Formalism Functional loose in practice
Executive Forbidden Anything Rare
goes
Judicial Forbidden Generous Nominally strict
(justiciability stds)
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Art. II – Executive Power
Sources of Executive Power
Art. II
§ 1, ¶ 1: ―The executive Power shall be vested in a
President of the United States of America.‖
§ 2, ¶ 1: ―The President shall be Commander in
Chief .. have Power to grant Reprieves & Pardons ..
§ 2, ¶ 2: make treaties and appointments …
§ 2, ¶ 3: ―Power to fill up all Vacancies …‖
§ 2, ¶ 4: recommend laws to Congress; ―receive
ambassadors,‖ and ―shall take Care that the Laws
be faithfully executed.‖
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Art. II – Executive Power
Sources of Executive Power
Art. II
§ 1, ¶ 1: ―The executive Power shall be vested in a
President of the United States of America.‖
§ 2, ¶ 1: ―The President shall be Commander in
Chief .. have Power to grant Reprieves & Pardons ..
§ 2, ¶ 2: make treaties and appointments …
§ 2, ¶ 3: ―Power to fill up all Vacancies …‖
§ 2, ¶ 4: recommend laws to Congress; ―receive
ambassadors,‖ and ―shall take Care that the Laws
be faithfully executed.‖
The President’s national security &
diplomatic powers (head of state)
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Art. II – Executive Power
Sources of Executive Power
Art. II
§ 1, ¶ 1: ―The executive Power shall be vested in a
President of the United States of America.‖
§ 2, ¶ 1: ―The President shall be Commander in
Chief .. have Power to grant Reprieves & Pardons ..
§ 2, ¶ 2: make treaties and appointments …
§ 2, ¶ 3: ―Power to fill up all Vacancies …‖
§ 2, ¶ 4: recommend laws to Congress; ―receive
ambassadors,‖ and ―shall take Care that the Laws
be faithfully executed.‖
Law-making power; see also Art. I,
§ 7, ¶ 2 (presentment)
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Art. II – Executive Power
Sources of Executive Power
Art. II
§ 1, ¶ 1: ―The executive Power shall be vested in a
President of the United States of America.‖
§ 2, ¶ 1: ―The President shall be Commander in
Chief .. have Power to grant Reprieves & Pardons ..
§ 2, ¶ 2: make treaties and appointments …
§ 2, ¶ 3: ―Power to fill up all Vacancies …‖
§ 2, ¶ 4: recommend laws to Congress; ―receive
ambassadors,‖ and ―shall take Care that the Laws
be faithfully executed.‖
Depends upon legislation; there-
fore congress nominally controls it
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Art. II – Executive Power
Sources of Executive Power
Core Art. II powers
Delegated power (i.e., legislation
needing implementation)
Inherent power?
What if the constitution omits
something important, like
protecting the US from immin-
ent invasion or insurrection?
open-ended nature of Art. II’s
grant of ―executive power‖
power flowing from our status as a
sovereign nation
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Steel Seizure Case - Timeline
June 28, 1950 – Korean War
starts
June 30 – US enters the war
1952 – Truman imposes
wage & price controls, Y
leading to labor unrest
April 4 – Steelworkers Union
announces strike for April 9
April 8 –Truman issues
Executive Order 10340 and
addresses nation
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Steel Seizure Case - Timeline
Between April 17, 1945, and
August 27, 1946, Truman
had seized 28 other industrial
properties—sometimes entire
industries, such as the
railroads and the meat
packers—in labor disputes.
Because he opposed the
Taft-Hartley Act, which
Congress had passed it over
his veto in 1947. He did not
ask Congress to authorize his
seizure of the steel industry.
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EXECUTIVE ORDER 10340
WHEREAS American fighting men and fighting men of other nations of the
United Nations are now engaged in deadly combat with the forces of
aggression in Korea
WHEREAS steel is indispensable to [the war effort]
WHEREAS a work stoppage would immediately jeopardize and imperil our
national defense
NOW, THEREFORE, by virtue of the authority vested in me by the
Constitution and laws of the United States, and as President of the United
States and Commander in Chief of the armed forces of the United States,
it is hereby ordered as follows:
1. The Secretary of Commerce [shall] take possession of the plants,
facilities, and other property of the companies named in the list attached
hereto, or any part thereof, as he may deem necessary in the interests of
national defense; and to operate or to arrange for the operation thereof
and to do all things necessary for, or incidental to, such operation.
HARRY S. TRUMAN, THE WHITE HOUSE, April 8th, 1952
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Youngstown Steel v. Sawyer (1952)
What power does Truman exercise here?
Executive power?
―take care that the laws be faithfully executed‖
What law is the President executing?
No statute authorizing seizure in strike situation
Congress rejected this in Taft-Hartley Act (1947)
But authorized courts to issue temporary injunctions
Commander-in-chief?
Broad interpretation: anything related to military
Narrow interpretation: theater of war operations
Example: Lincoln’s emancipation proclamation
Domestic actions and foreign wars?
What limits during an era of permanent war?
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Youngstown Steel v. Sawyer (1952)
What power does Truman exercise here?
Inherent? Extra-constitutional powers?
Federal gov’t enjoys power of national sovereignty
(incl. defense) whether included in const. or not.
Difference between federalism and SoP
Attributes of national sovereignty defaults to US
no SoP default rules
National defense
Teddy Roosevelt: "The president is steward of the
people. It was not only his right but his duty to do
anything that the needs of the Nation demanded
unless such action was forbidden by the const. or by
the law.‖
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Youngstown Steel v. Sawyer (1952)
Closer examination of war power
Congress has power to declare war (Art I, §8, ¶9)
i.e., the power to make policy
As C-I-C, President is ―first general‖
i.e., the power to execute
congress’ war policy and to direct
war operations themselves
Was Korean War a ―declared
war‖?
Would it matter if it were?
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Justice Black’s Strict Approach
Unless Truman’s action is found within
his Article II powers, it is unconstitutional
Executive Power
this is not equivalent to King’s royal prerogative
not an independent grant of power
Take Care
there must first be a law passed by congress
the seizure was itself legislative in character as can
be seen by its preamble, setting forth policy
also, seizure commits US to payment of
compensation
C-I-C
domestic effects not within C-I-C powers
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Douglas' Cautionary Approach
Emergency does not create power; it only
provides an occasion for use of power
SoP adopted not to promote efficiency, but to
use the inevitable friction to safeguard liberty
Seizure by President ties Congress's hand
on implementation of policy
Commits the US to payment of compensation
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Frankfurter’s Flexible Approach
Const provides framework, not a rigid code
3 branches are interacting, not disjointed
Dynamic interpretation of the constitution
Const. law is not "confined to the words of the Const.,
disregarding the gloss which life has written upon them."
Power may accrete from congress to president over
time as former acquiesces in unilateral action
almost a ―common law‖ version of the constitution
but can be overridden by specific congressional action
reclaiming its delegated authority
which is what happened in this case because congress had
specifically denied Truman authority to seize factories
Vinson dissent sees no specific prohibition on Pres. Action
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Jackson’s Structured Approach
SoP is misnomer; branches act in concert
separateness, but interdependence
autonomy, but reciprocity
Interaction between Congress & President
1. Congress authorizes, triggering executive power
President possesses all his own powers, plus
Any power congress has validly delegated to him
2. Congress remains silent
President possesses express & implied powers
those stated in §2 plus those he shares with congress
3. Congress rejects presidential power
Pres has only Art II power, minus shared powers
those that congress may not take away from him
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Jackson’s 3-Zone test endures
Zone 1: Approval
President acts w/ congressional authority
Presidential action is invalid only if federal gov’t as a
whole lacks power in this area (federalism)
Zone 2: Silence (twilight zone)
Congress neither approves nor disapproves
Balance need for unilateral presidential action against
damage to const'l rights and structure
other ―imperatives‖ and ―imponderables‖ of events
Zone 3: Disapproval
President acts despite congress’ disapproval
Valid only if w/in Art. II (or approved inherent power)
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Jackson's eloquy on SoP
"With all its defects, delays and
inconveniences, men have discovered no
technique for long preserving free
government except that the Executive be
under the law, and that the law be made
by parliamentary deliberations."
Robert Jackson was chosen by
President Harry S Truman in 1945
to be the Chief Prosecutor for the
United States at Nuremburg
What ever happened to Youngstown Sheet & Tube
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SoP & Foreign Affairs
Presidential Power
Constitutional Text
Art. II, § 2: ―The president shall be commander in chief
of the army and navy of the United States, and of the
militia of the several States;‖
―He shall have power, by and with the advice and
consent of the senate, to make treaties … and he shall
nominate, with the advice and consent of the senate,
shall appoint ambassadors, other public ministers and
consuls‖
Art. II, § 3: ―he shall receive ambassadors and other
public ministers‖
―He shall take care that the laws be faithfully executed‖
When congress authorizes, President acts within Zone 1
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SoP & Foreign Affairs
Presidential Power
Inherent (unstated) Power
Head of State
US v. Curtiss-Wright: ―The President is the sole
organ of the nation in its external relations, and its
sole representative with foreign nations.‖
Does either Art. II or the President’s ―inherent
power‖ mean that different SoP rules apply
when it comes to war or foreign affairs?
Can Congress restrict the President’s conduct of
either?
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Dames & Moore v. Regan (1981)
Iran-US Claims Tribunal
Established by Executive Agreement
Terminates all cases (public & private claims) v. Iran
Authority
Core Art. II power ?
Inherent power?
Int’l Claims Settlement Act ?
Close, but not on-point
Congressional acquiescence
Zone 1a
Headquarters of IUSCT – The Hague
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The Prize Cases (1863)
Who has power to make war?
Art. I, § 2, ¶ 1: ―The Congress shall have power
to declare War …‖
Art. II, § 2, ¶ 1: ―The President shall be
Commander in Chief
Is the Pres’ power shared, or unilateral?
Difference between
initiating/declaring war and
repelling invasion and
suppressing insurrection
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Inherent Power to defend US
Can President ―make war‖?
Objections at const’l convention
Elbridge Gerry: "never expected to hear in a republic a motion
to empower the Executive alone to declare war."
George Mason: ―was agst giving the power of war to the Exec-
utive because not safely to be trusted with it; or to the Senate,
because not so constructed as to be entitled to it. He was for
clogging rather than facilitating war, but for facilitating peace‖
Roger Sherman: ―the Executive shd. be able to repel and not
to commence war‖
Is this understanding reflected in difference between
President’s power as Commander-in-Chief [Art. II, § 2]
Congress’ power to declare war [Art. I, § 8, ¶ 11]
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Extent of presidential war power
How broad is Pres’ defensive war power?
Since all American wars are defensive
Can the President always act without cong. approval
Can Bush invade Iran as a defensive measure?
Can he order domestic spying?
Can the Pres’ inherent power to defend the US
be circumscribed by Congress?
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Un/Declared Wars
Formal Declarations
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Un/Declared Wars
No Declaration of War
1950-53: Korea 1982: Lebanon
1962: Cuba 1983: Grenada
1964: Vietnam 1987: Persian Gulf
1965: Domican Republic 1988: Panama
1970: Cambodia 1991: Iraq
1980: Iran 1992: Somalia
1981: El Salvadaor 1993: Bosnia
1981: Libya 2003: Iraq
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Un/Declared Wars
Gulf of Tonkin Resolution
Aug 4, 1964: Pres. Johnson reports to Congress
N.Vietnamese patrol boats made an unprovoked attack on the
destroyer USS Maddox in int’l waters, & claimed "unequivocal proof"
of an "unprovoked" second attack against the Maddox
Aug. 7, 1964: Congress passes H.J.Res 1145
"to take all necessary steps, including the use of armed force, to
assist any member or protocol state of the Southeast Asia Collective
Defense Treaty requesting assistance"
Vote in House 416-0; in Senate 88-2
Squadron commander James Stockdale, flying overhead
"[I] had the best seat in the house to watch that event; our destroy-
ers were just shooting at phantom targets -- there were no PT boats
there.... nothing there but black water and American fire power."
Johnson later said in private:
"for all I know, our Navy was shooting at whales out there."
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Justiciability in times of war
Mora v. McNamara (1967)
Are these questions justiciable?
I. Is US military activity in Vietnam a 'war' within the meaning of
Article I, Section 8, Clause 11 of the Constitution?
II. May the President draft for that military activity, when no war
has been declared by Congress?
III. Do treaty obligations of the US enlarge/restrict pres. power?
IVa. Do US military operations fall within the terms of the joint
Congressional ('Tonkin Bay') Resolution of August 10, 1964?
IVb. If the Resolution purports to give the Pres. authority to commit
US forces to armed conflict limited only by his own absolute
discretion, is the Resolution a constitutionally impermissible
delegation of all or part of Congress' power to declare war?
Answer these questions viz the war on terrorism
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War Powers Resolution
§ 1541, 1547 – Declaration of Policy
Preserve SoP re. use of armed forces in hostile situation
Presidential action only if
Declaration of war or specific statutory authorization
National emergency created by attack on US, territories, forces
§ 1542 – Consultation
President shall consult w/ Cong. before sending forces
§ 1543 – Reporting
President shall submit report to Speaker of the House &
Constitutional?
President pro tempore of the Senate within 48 hours
§ 1544 – Congressional Action
Termination within 60/90 calendar days, or
Concurrent resolution requiring withdrawal of forces
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“You may, by force of arms,
attack, subdue, and take all
Ships and other Vessels
whatsoever carrying Soldiers,
Arms, Gunpowder,
Ammunition, Provisions or
other contraband Goods, to
any of the British Armies or
Ships of War employed
against these Colonies”
John Hancock, Pres. 2d
Continental Congress
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