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					QUESTIONS

      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?

APPROACHES

Separation of Powers Analysis

      Formal
          o Textual
          o Original intent
          o Structural
      Functional
          o Institutional competence
          o Historical practice
          o Values

The Executive

The Judiciary

      Political question
          o Textual commitment doctrine
          o Case or controversy doctrine
      Standing
          o Only says “not you” versus “never”
          o Who would have standing? Anybody?
NOTES ON CONSTITUTIONAL PROVISIONS AND TESTS

      Commander-In-Chief Clause
          o Also ties in to foreign affairs power
      Take Care Clause
          o Youngstown
                    Note that Justice Vinson’s dissent spells this argument out nicely
                    CB p.75-80
                    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”
          o Youngstown
                    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
                                specific statute)
                            Vincent – grant of police power subject to congressional and
                                constitutional control (i.e. can act unless Congress explicitly says
                                no)
                            Jackson – somewhere in the middle between Black and Vincent
                                (three zones)
      Necessary and Proper Clause
          o Youngstown
                    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
                       power
      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
CONSTITUTIONAL PROVISIONS

Article I

      Impeachment
      Presidential veto
      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
       foregoing Powers

Article II

      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
STATUTES

     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

				
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posted:10/4/2011
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