Sep. of Pwrs (S/P): Plenary & Concurr. Pwrs, Exec. Agmts,
Leg. Veto, & War Pwr
Sources of Pwrs 4 Pres. & Cong.
- Const. Text
- Split For. Affairs Pwrs
- Commander in Chief (CIC)
- Treaty (w/Sen.)
- Appt. ambassador (w/Sen.)
- Receive for. ambassador
- Treaty (w/Pres.)
- Appt ambassador (w/Pres)
- Declare war
- Def. & punish piracies
- Common wealth, trade
- Coins of for.
- Immigration & naturalization
- Framers' Intent
- Functionalism (Fn'sm): Curtiss Wright Case (C-W)
- Gen'ly 2ndary Source Not Main Source
- Pres. Sole Pwr 4 For. Affair
- Sutherland arg's that Pres. has superior knowledge
- Pract.'ly has agents so better suited
- Cong. 2 large & can't keep secret & Pres. as 1 voice
should speak 4 nation
- External Sov.: C-W Case
- Sutherland's Theory
- Even w/Const. implication 4 extra-Const. source
- Source sov. so for. pwr plenary 2 Pres. & not subj. 2
- Prob's W/This Source & Analysis
- Before Union, there were indep. states so sov. split a lot
- Pres. took Const. oath, not sov. oath
- Pres's agents not just Pres's & Cong. can't leg. in vacuum
Plenary Pres. Pwrs
- Def. of Plenary
- Indep. Pwr from Cong.
- Indep, inherent, sole, excl
- Pwr from Const. so unlimited by Cong. b/c Const. occupies
the field 4 Pres.
- List of Plenary Pwrs
- Pardon (US v. Klein & Garland Cases): Art
- Reception & Recog.: Art II, §3
- In text, ceremony of receiving ambassadors & ministers
in reception clause
- Main source is custom combined w/text set by Pres. Wash. (Goldwater
- Negotiations w/For. Pwrs: Art II, §2
- Text w/custom gives Pres. as the only person who can initiate
negotiation & 2 prom. 2 do something so can dec. w/whom, when,
& subj. matter of negotiations
- Prom. not binding on subseq. Pres's probably
- Cong. can only check the treay pwr w/ 2/3 Sen. concurr. but
can't tell Pres. not 2 negotiate
- CIC Art II, §2
- Operational context that Pres. make pract'al dec's but Cong.
- Peace X deployment seems like sole Pres. pwr
- No dispute on Pres. as CIC but quest. on where Pres. pwr ends
& Cong. pwr 2 dclare war begins
- Bush case in dicta sugg. Pres. can't commit US 2 war w/o Cong.
- Case Law & Lining Up Precedents by Cong. Approval,
Silence & Disapproval
- US v. Curtiss-Wright (C-W)
- Category 1 Case: Cong. Approved
- Never get 2 plenary pwr issue b/c plenary pwr issue arise
only when Pres. act in face of Cong. opposition
- This case not a precedent est'ing Pres. can act in Cong. silence
- Upheld Pres's embargo & crim. penalty
- Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure
- Category 3 Case: Cong. Disapproved
- C -W not control b/c that was category 1 case
- Jackson's concurr. said category 3 b/c Cong. rejected amend.
that would've auth'ed seizure so prohibition
- Prob. of Holding as Category 3
- Cong. was actually silent b/c not pass anything
- Jackson's logic dictates only find Category 2 if Cong. does
- Rehnquist conceptualize spectrum w/explicit textual approval
2 explicit disapproval b/c it's not really 3 pts but a spectrum
- Polit. Quest. & Judge's Pre-existing Values
- Seems that Pres. was in best position 2 det. imm. nat'l sec.
& could've dec'ed the case narrowly / tell Cong. 2 B explicit
- Influenced by judge's own opinions & politics
- Posture of Const.
- Category 3
- Pres. pwr lowest, still need 2 look @ Const. b/c category
3 not mean no pwr only lowest pwr
- Interp. Const. 4 scope of Pres's plenary pwrs
- Text & custom used a lot
- Not find framers' intent a lot
- Limit on Pres. Plenary Pwrs
- Nat.'l Sec.
- US gov'ed by rule of law so Pres. can't always put nat'l sec.
2 do everything
- Pres. axn of agmt w/for. country
- Sole exec. agmt: Pres. acts persuant 2 Const. so no need 4
- Cong. exec. agmt: agmt by approval of both maj. houses
- Treaty v. Exec. Agmt
- Treaty Is Exceptional Nat.
- If exceptional nat'l imp. subj., then treaty so Pres. can't
enter into it w/o some form of Sen. consent unless it's Pres.
- Done it since earliest days of repub. w/postal agmt by Pres.
so this is source
- Pres's have gen'ly used Cong. exec. agmt (Polk & Carter)
- Ref. agmt w/for. countries maybe in IC compact clause &
maybe in treaty clause but quest'able whether agmt is treaty
- Framer's Intent
- Framers' intent not trusted so not really a source
- Case Law
- US v. Belmont
- Category 2 / 3 Case
- Cong. was silent but state opposed
- C -W not precedent by category & nothing 2 do w/exec.
- Upheld Exec. Agmt
- Dames & Moore v. Regan
- Category 2 / 1 Case
- Cong. didn't do anything 4 a long X so imply acquiesced in
Pres's settlement claims so silence here means consent
- Rehnquist gets around plenary pwr issue by finding Cong. approval
- Nat'l Emergency Case
- Amer. people freed by this agmt so no X 2 get Cong. approval
Nat.'l Sec. & Limitation of Exec. Pwrs
- Case Law
- Snepp v. US
- Nat.'l Sec. Arg. Won
- Upheld K of CIA so 1st Amend. Never Arg'ed
- Pentagon Papers Case
- 1st Amend. Gave Way
- Pub. didn't raise casualtis in Vietnam, undermine morales
/ put diplomacy in difficult sit.
- Cleared pub. thinking
- Korematsu Case
- Nat'l Sec. Arg. Won
- Ct not quest. Pres's expertise & upheld incarcerating
- Reversed few yrs ago when evid. Sup Ct were lied 2
- Strict Scrutiny Passed
- Racial but upheld by compelling pub. int.
- Types of Resolutions
- Sen./House Resolution
- Passed by 1 house of Cong. & takes effect on vote of that
- Not presented 2 Pres. / other house
- Concurr. Resolution
- Resolution adopted by both houses of Cong. in the same form
but not sent 2 Pres.
- Joint Resolution
- Proced. same as bill so interchangeable
- Both houses adopt then send 2 Pres. & 2/3 can override
- Cont'ing resolution cont's what was before w/o adding restrictions
- Use of Concurr. Resolution & Leg. Veto Before Chadha
- Leg. Vetoes Tagged in Specif. Statute, Bill, Etc.
- Not involve Pres. & can veto
- Pres. accept b/c get a good deal since Cong. won't approve
- Leg. Veto's Pwr
- Derived force & effect from statute that incorp'ed it
not by itself
- INS v. Chadha
- Pres. must have chance 2 veto the leg. 2 B Const'al of any
- If purpose / effect of changing the legal duty / rel. outside
of leg. branch where otherwise no B subj'ed 2, then go through
- Bicameralism so must pass through both houses
- Source 4 Test
- Presentment clause of Art I §7, cl. 3 gives Pres. rt.
- Can't go around that by calling it resolution
- Lang. unclear on application 2 resolution
- Framers' Intent / Originalist
- Can't look @ this b/c leg. veto not invented until 1929
- Could arg. Pres. allowed 4 50 yrs. & reality
- But disting. from exec. agmt b/c of duration & should
really go back 2 earliest days 4 validity b/c then custom + orig.
- Fn'al Consid.
- Pre-Chadha, both Exec. & Cong. could do a lot more b/c
only need 1 house but post-Chadha req. joint resolution
- Case Law
- Leg. pwrs can't B delegated 2 Pres. but Cong. can grant auth.
2 Pres. contingent on occurrence of specified event
- Proced. / How Prob.
- S/P quest. of proced. not subst. / what prob. by leg. veto
- Need amendment 2 overturn Chadha
- Presentment Clause Met v. Slippery Slope Arg.
- Statute incorporating leg. vetoes already presented Pres.
& leg. veto only subseq. cond.
- Exec. arg'ed that slippery slope b/c Cong. can do whatever
if allow such thing
- Hunter's Lessee arg. pwr may B abused is not an arg.
- Case Law & Custom of Cong'al Silence
- Prize Case: Category 2/1
- War forced on Pres & Cong. approved w/attack 2 a fort
- When Pres. repel sudden attack, moved from category 2 2 category
- Moscow & Grenada Cases
- Factors 4 Axn W/O Cong.
- Likely duration
- Extent of casualty
- Extent of emergency that Cong. had no opp. 2 act
- Rescue: Pretextual Excuse
- Vietnam War
- Cong. dec's policy so Cong. must have rt. 2 info b/c can't
leg. in vacuum
- Pres. lies
- Jones v. Bush
- Can't go 2 war w/o Cong. approval in dicta
- Magnitude Test of War Pwr Resolution
- Too Narrow of List in §2)c
- Only opinion of Cong.
- Pres. can only use armed force into hostilities
- Sentiment that should incl. rescue but rescue rationale used
a lot 2 overthrow govt's hostile 2 US
- Historical Precedents
- Not just 3 categories of Jackson incidents, but should B polit'ly
on pt. by magnitude of casualty & risk but most magnitude
test use cases that R lwr
- Passing War Pwr Resolution
- Two Versions of Sen. & House
- Compromise btwn tough Sen. version w/prior restraints on Pres.
& 30 day X per. 4 report & lax House version w/no prior
restrant but longer subseq. restraint
- Adopted §2)c w/o mandated lang.
- Sections of War Pwr Resolution
- Cong. opinion on §2)c
- Excl'ed rescue b/c couldn't draft narrowly
- Consultation When Reporting Reqt of §4)a in §3
- Pres. Submit Report 48 hrs. after intro'ing armed forces into
hostilities 2 Cong. by §4)a & can't avoid triggering
X per. by not reporting
- Sec. 5)b says have 60 days but @ end, w/draw unless Cong.
declared war, enacted statute that lengthens, / auth's the use
of armed force
- Sec. 5)c is leg. veto that Cong. dir's by concurr. resolution
- Both §5)b & c is on fast track
- Sec 8
- Last in X doc.
- Sub a)1 where Pres. can't infer auth. from any statute 2 intro.
hostilities w/o express auth.
- Sub a)2 where can't infer from treaty & if rely on treaty
must B leg.
- Chadha / Proced. Prob.
- Sec. 5)b & c run into presentment & bicameralism prob.
- Sec. 8)d)1 says not intended 2 alter Const'al auth. of Cong.
- Categories Unclear 4 60 Day X Per.
- By §8)d, not category 1
- By §5)b, category 1
- B/c Cong. trying 2 override Pres. veto w/o 2/3 vote by not
doing anything, category 3
- Cong. Exercise of Declaring War v. Pres's CIC
- Hostility Loophole
- X limit not triggered if no hostility & Cong. never def'ed
- Underlying Prob. of Cong. v. Pres. War Pwr
- Const. not specify when Cong. need 2 approve
- Scope of Pres.'s Pwr as CIC
- Const. not say if sole pwr
- Custom does say 60 day X per. impinges on CIC pwr
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