Structural metaphors: separation of powers; checks and balances?
Executive structure: energy v. accountability?
Attorney role: advisor v. advocate?
Precedents: cases, practice?
What is the role of the courts (if any)?
Duty: ministerial v. discretionary?
What remedies are available: injunctive, damages, contempt?
What are the implications of a given act?
Is an act: legislative, executory, adjudicative?
Separation of powers: is this an encroachment by one branch on another?
What is the authority being claimed?
Separation of Powers Analysis
o Original intent
o Institutional competence
o Historical practice
o Textual commitment doctrine
o Case or controversy doctrine
o Only says “not you” versus “never”
o Who would have standing? Anybody?
NOTES ON CONSTITUTIONAL PROVISIONS AND TESTS
o Also ties in to foreign affairs power
Take Care Clause
Note that Justice Vinson’s dissent spells this argument out nicely
Kendall v. United States ex rel. Stokes – Take care does not give President
power to forbid a laws execution
Vesting Clause – Art. II, Sec. 1 grant of “executive power”
Argument is that are no limits in this clause
Note that in contrast to Art. I there is no provision stating “herein granted”
rather it appears to be an unenumerated grant
It seems that the difference between Black, Jackson and Vincent really
comes down to a question of power in the Vesting Clause
Black – not an operational clause (i.e. can only act when there is a
Vincent – grant of police power subject to congressional and
constitutional control (i.e. can act unless Congress explicitly says
Jackson – somewhere in the middle between Black and Vincent
Necessary and Proper Clause
Note that the Necessary and Proper Clause indicates that Congress can
pass laws needed to carry into execution powers vested in other branches
Indicates that Congress may be able to structure or channel powers that the
President has (even those specifically enumerated)
The line might be that Congress can perhaps define procedure/channels for
the exercise of a particular power but probably not the substance of the
Separation of Powers
o Nixon v. Adm'r of General Servs
Extent to which the act prevents the executive from accomplishing its
constitutionally assigned functions
If the potential for disruption is present is there an overriding need that
justifies that intrusion
Ineligibility and Incompatibility Clause
Tax and spend “for the common Defence and general Welfare”
To regulate Commerce with foreign Nations, and among the several States
To define and punish Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water
To raise and support Armies, but no Appropriation of Money to that Use shall be for a
longer Term than two Years
To provide and maintain a Navy
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions
To provide for organizing, arming, and disciplining the Militia, and for governing such
Part of them as may be employed in the Service of the United States
To make all Laws which shall be necessary and proper for carrying into Execution the
The executive Power shall be vested in a President of the United States of America
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 nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments
[H]e shall take Care that the Laws be faithfully executed
Administrative Procedures Act
o See Supp. I, p.20-28
Freedom of Information Act
o See Supp. I, p.29-30
Federal Advisory Committees Act
War Powers Act
Detainee Treatment Act
Military Commissions Act