Sep. of Pwrs (S/P): Plenary & Concurr. Pwrs, Exec. Agmts, Leg. Veto, & War Pwr

Sources of Pwrs 4 Pres. & Cong.

  1. Const. Text
    1. Split For. Affairs Pwrs
      1. Pres.
        1. Commander in Chief (CIC)
        2. Treaty (w/Sen.)
        3. Appt. ambassador (w/Sen.)
        4. Receive for. ambassador
      2. Cong.
        1. CC
        2. Treaty (w/Pres.)
        3. Appt ambassador (w/Pres)
        4. Declare war
        5. Def. & punish piracies
        6. Military
        7. Common wealth, trade
        8. Coins of for.
        9. Immigration & naturalization
        10. Spend
  2. Framers' Intent
  3. Functionalism (Fn'sm): Curtiss Wright Case (C-W)
    1. Gen'ly 2ndary Source Not Main Source
    2. Pres. Sole Pwr 4 For. Affair
      1. Sutherland arg's that Pres. has superior knowledge
      2. Pract.'ly has agents so better suited
      3. Cong. 2 large & can't keep secret & Pres. as 1 voice should speak 4 nation
  4. External Sov.: C-W Case
    1. Sutherland's Theory
      1. Even w/Const. implication 4 extra-Const. source
      2. Source sov. so for. pwr plenary 2 Pres. & not subj. 2 Const. limit
    2. Prob's W/This Source & Analysis
      1. Before Union, there were indep. states so sov. split a lot
      2. Pres. took Const. oath, not sov. oath
      3. Pres's agents not just Pres's & Cong. can't leg. in vacuum

Plenary Pres. Pwrs

  1. Def. of Plenary
    1. Indep. Pwr from Cong.
      1. Indep, inherent, sole, excl
      2. Pwr from Const. so unlimited by Cong. b/c Const. occupies the field 4 Pres.
  2. List of Plenary Pwrs
    1. Pardon (US v. Klein & Garland Cases): Art II, 2
    2. Reception & Recog.: Art II, 3
      1. In text, ceremony of receiving ambassadors & ministers in reception clause
      2. Main source is custom combined w/text set by Pres. Wash. (Goldwater v. Carter)
    3. Negotiations w/For. Pwrs: Art II, 2
      1. 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
      2. Prom. not binding on subseq. Pres's probably
      3. Cong. can only check the treay pwr w/ 2/3 Sen. concurr. but can't tell Pres. not 2 negotiate
    4. CIC Art II, 2
      1. Operational context that Pres. make pract'al dec's but Cong. make policies
      2. Peace X deployment seems like sole Pres. pwr
      3. No dispute on Pres. as CIC but quest. on where Pres. pwr ends & Cong. pwr 2 dclare war begins
      4. Bush case in dicta sugg. Pres. can't commit US 2 war w/o Cong. approval
  3. Case Law & Lining Up Precedents by Cong. Approval, Silence & Disapproval
    1. US v. Curtiss-Wright (C-W)
      1. Category 1 Case: Cong. Approved
        1. Never get 2 plenary pwr issue b/c plenary pwr issue arise only when Pres. act in face of Cong. opposition
        2. This case not a precedent est'ing Pres. can act in Cong. silence / opposition
      2. Upheld Pres's embargo & crim. penalty
    2. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)
      1. Category 3 Case: Cong. Disapproved
        1. C -W not control b/c that was category 1 case
        2. Jackson's concurr. said category 3 b/c Cong. rejected amend. that would've auth'ed seizure so prohibition
      2. Prob. of Holding as Category 3
        1. Cong. was actually silent b/c not pass anything
        2. Jackson's logic dictates only find Category 2 if Cong. does nothing
        3. Rehnquist conceptualize spectrum w/explicit textual approval 2 explicit disapproval b/c it's not really 3 pts but a spectrum
      3. Polit. Quest. & Judge's Pre-existing Values
        1. 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
        2. Influenced by judge's own opinions & politics
  4. Posture of Const.
    1. Category 3
      1. Pres. pwr lowest, still need 2 look @ Const. b/c category 3 not mean no pwr only lowest pwr
      2. Interp. Const. 4 scope of Pres's plenary pwrs
        1. Text & custom used a lot
        2. Not find framers' intent a lot
  5. Limit on Pres. Plenary Pwrs
    1. Nat.'l Sec.
      1. US gov'ed by rule of law so Pres. can't always put nat'l sec. 2 do everything

Exec. Agmts

  1. Def.
    1. Pres. axn of agmt w/for. country
      1. Sole exec. agmt: Pres. acts persuant 2 Const. so no need 4 Cong.
      2. Cong. exec. agmt: agmt by approval of both maj. houses
  2. Treaty v. Exec. Agmt
    1. Treaty Is Exceptional Nat.
      1. 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. plenary pwr
  3. Source
    1. Custom
      1. Done it since earliest days of repub. w/postal agmt by Pres. so this is source
      2. Pres's have gen'ly used Cong. exec. agmt (Polk & Carter)
    2. Text
      1. Ref. agmt w/for. countries maybe in IC compact clause & maybe in treaty clause but quest'able whether agmt is treaty
    3. Framer's Intent
      1. Framers' intent not trusted so not really a source
    4. Case Law
      1. US v. Belmont
        1. Category 2 / 3 Case
          1. Cong. was silent but state opposed
          2. C -W not precedent by category & nothing 2 do w/exec. agmt
        2. Upheld Exec. Agmt
      2. Dames & Moore v. Regan
        1. Category 2 / 1 Case
          1. Cong. didn't do anything 4 a long X so imply acquiesced in Pres's settlement claims so silence here means consent
          2. Rehnquist gets around plenary pwr issue by finding Cong. approval
        2. Nat'l Emergency Case
          1. Amer. people freed by this agmt so no X 2 get Cong. approval

Nat.'l Sec. & Limitation of Exec. Pwrs

  1. Case Law
    1. Snepp v. US
      1. Nat.'l Sec. Arg. Won
        1. Upheld K of CIA so 1st Amend. Never Arg'ed
    2. Pentagon Papers Case
      1. 1st Amend. Gave Way
        1. Pub. didn't raise casualtis in Vietnam, undermine morales / put diplomacy in difficult sit.
        2. Cleared pub. thinking
    3. Korematsu Case
      1. Nat'l Sec. Arg. Won
        1. Ct not quest. Pres's expertise & upheld incarcerating Jap-Amer.'s
        2. Reversed few yrs ago when evid. Sup Ct were lied 2
      2. Strict Scrutiny Passed
        1. Racial but upheld by compelling pub. int.

Leg. Veto

  1. Types of Resolutions
    1. Sen./House Resolution
      1. Passed by 1 house of Cong. & takes effect on vote of that house
      2. Not presented 2 Pres. / other house
    2. Concurr. Resolution
      1. Resolution adopted by both houses of Cong. in the same form but not sent 2 Pres.
    3. Joint Resolution
      1. Proced. same as bill so interchangeable
      2. Both houses adopt then send 2 Pres. & 2/3 can override Pres's veto
      3. Cont'ing resolution cont's what was before w/o adding restrictions
  2. Use of Concurr. Resolution & Leg. Veto Before Chadha
    1. Leg. Vetoes Tagged in Specif. Statute, Bill, Etc.
      1. Not involve Pres. & can veto
      2. Pres. accept b/c get a good deal since Cong. won't approve bills otherwise
    2. Leg. Veto's Pwr
      1. Derived force & effect from statute that incorp'ed it not by itself
  3. INS v. Chadha
    1. Test
      1. Pres. must have chance 2 veto the leg. 2 B Const'al of any concurr. resolution
      2. If purpose / effect of changing the legal duty / rel. outside of leg. branch where otherwise no B subj'ed 2, then go through Pres.
      3. Bicameralism so must pass through both houses
    2. Source 4 Test
      1. Text
        1. Presentment clause of Art I 7, cl. 3 gives Pres. rt. 2 veto
        2. Can't go around that by calling it resolution
        3. Lang. unclear on application 2 resolution
      2. Framers' Intent / Originalist
        1. Can't look @ this b/c leg. veto not invented until 1929
      3. Custom
        1. Could arg. Pres. allowed 4 50 yrs. & reality
        2. But disting. from exec. agmt b/c of duration & should really go back 2 earliest days 4 validity b/c then custom + orig. intent
      4. Fn'al Consid.
        1. Pre-Chadha, both Exec. & Cong. could do a lot more b/c only need 1 house but post-Chadha req. joint resolution
      5. Case Law
        1. Leg. pwrs can't B delegated 2 Pres. but Cong. can grant auth. 2 Pres. contingent on occurrence of specified event
  4. Proced. / How Prob.
    1. S/P quest. of proced. not subst. / what prob. by leg. veto
    2. Need amendment 2 overturn Chadha
  5. Presentment Clause Met v. Slippery Slope Arg.
    1. Statute incorporating leg. vetoes already presented Pres. & leg. veto only subseq. cond.
    2. Exec. arg'ed that slippery slope b/c Cong. can do whatever if allow such thing
    3. Hunter's Lessee arg. pwr may B abused is not an arg.

War Pwr

  1. Case Law & Custom of Cong'al Silence
    1. Prize Case: Category 2/1
      1. War forced on Pres & Cong. approved w/attack 2 a fort
      2. When Pres. repel sudden attack, moved from category 2 2 category 1
    2. Moscow & Grenada Cases
      1. Factors 4 Axn W/O Cong.
        1. Magnitude
        2. Likely duration
        3. Extent of casualty
        4. Extent of emergency that Cong. had no opp. 2 act
      2. Rescue: Pretextual Excuse
    3. Vietnam War
      1. Cong. dec's policy so Cong. must have rt. 2 info b/c can't leg. in vacuum
      2. Pres. lies
    4. Jones v. Bush
      1. Can't go 2 war w/o Cong. approval in dicta
  2. Magnitude Test of War Pwr Resolution
    1. Too Narrow of List in 2)c
      1. Only opinion of Cong.
      2. Pres. can only use armed force into hostilities
      3. Sentiment that should incl. rescue but rescue rationale used a lot 2 overthrow govt's hostile 2 US
    2. Historical Precedents
      1. 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
  3. Passing War Pwr Resolution
    1. Two Versions of Sen. & House
      1. 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
      2. Adopted 2)c w/o mandated lang.
    2. Sections of War Pwr Resolution
      1. Cong. opinion on 2)c
        1. Excl'ed rescue b/c couldn't draft narrowly
      2. Consultation When Reporting Reqt of 4)a in 3
      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
      4. 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
      5. Sec. 5)c is leg. veto that Cong. dir's by concurr. resolution 2 w/draw
      6. Both 5)b & c is on fast track
      7. Sec 8
        1. Last in X doc.
        2. Sub a)1 where Pres. can't infer auth. from any statute 2 intro. hostilities w/o express auth.
        3. Sub a)2 where can't infer from treaty & if rely on treaty must B leg.
    3. Chadha / Proced. Prob.
      1. Sec. 5)b & c run into presentment & bicameralism prob.
      2. Sec. 8)d)1 says not intended 2 alter Const'al auth. of Cong. / Pres.
    4. Categories Unclear 4 60 Day X Per.
      1. By 8)d, not category 1
      2. By 5)b, category 1
      3. B/c Cong. trying 2 override Pres. veto w/o 2/3 vote by not doing anything, category 3
    5. Cong. Exercise of Declaring War v. Pres's CIC
    6. Hostility Loophole
      1. X limit not triggered if no hostility & Cong. never def'ed hostility
  4. Underlying Prob. of Cong. v. Pres. War Pwr
    1. Const. not specify when Cong. need 2 approve
    2. Scope of Pres.'s Pwr as CIC
      1. Const. not say if sole pwr
      2. Custom does say 60 day X per. impinges on CIC pwr


This material is copyrighted by the author. Use of this material for profit is strictly prohibited without the written permission from the author.

Go Back to Law School Notes 1