Separation of Powers Outlines

Separation of Powers II – Executive Power

I.     The law of the nature of executive power (example of ancient Israel)

    A.     “INITIATIVE” – As the principal leader of the people, the chief executive takes initiative to command the military forces and act as the head of state in foreign affairs.
      1.     Military leader – “Commander in Chief.”
        - Moses. Ex. 17:8-13.
        - Joshua. Joshua 1:10-11.
        - Saul. I Samuel 11:6-7.
      2.     Head of State in Foreign Affairs.
        - Solomon. I Kings 5:1-12.
      3.     Qualifications for office.
        - A countryman. Dt. 17:15.
        - Oath of office. Dt. 17:18-20.
        - No age requirement. 2 Chr. 24:1.
      4.     Contrast w/ judicial power; responsive v. initiative.
    B.     “DISCRETION” – Executive officers have discretion in choosing the best means to enforce the law, for which they are accountable politically, not legally.
      1.     A choice of means to execute the law.
        - Investigation: many methods of fact-finding. Ezra 10.
        - Prosecution: selective prosecution.
        - Execution: pardon power. 2 Chr. 30:18-20.
      2.     Appointment and treaty powers.
        - Appointments: Ex. 18:21,25.
        - Treaties: Joshua 9:15.
      3.     A servant of the people.
        - Political accountability.
        - Contrast w/ judicial power: no discretion.
    C.     “EXECUTION” – The executive’s main function is to enforce (or execute) the laws by bearing the sword against wrongdoers. However, the executive cannot make or change legal rules, hence, acts by issuing orders.
      1.     Bear the sword against wrongdoers. Rom. 13:4.
        - Policeman-Investigator.
        - Prosecutor-Advocate.
        - Enforcer-Executioner.
      2.     No authority to make or change rules of law.
        - Example of Saul. Cmp. Deut 20:16-17 w/ 1 Sam 15:9.
      3.     Legislative power, by way of contrast, is Initiative, has Discretion, and issues rules (not orders).

II.     Constitutional Text Provisions.

    A.     Initiative Powers.
      - Commander in Chief – Art. II, Sec. 2, Cl. 1.
      - Head of State – Art. II, Sec. 2, Cl. 2.
      - Qualifications for office – Art. II, Sec. 1, Cl. 4.
      - Oath of Office – Art. II, Sec. 1, Cl. 7.
    B.     Discretionary Powers.
      1.     Discretionary powers (“he may”):
        - require opinions from Cabinet
        - grant reprieves and pardons
        - make treaties
        - nomination of officers
        - fill vacancies
        - convene or adjourn Congress
        - veto legislation.
      2.     Political Accountability.
        - Historical treatment.
        - Contrast w/ judiciary.
        - Theme: servant of the people.
    C.     Execution Powers.
      1.     Obligatory duties (“he shall”): Art. II, 3
        - Commander in Chief
        - Report to Congress
        - Receive foreign ambassadors
        - Commission U.S. officers.
      2.     Faithful execution of the laws. Art. II, Sec. 3.
        - executive counterpart to Necessary & Proper Clause.
        - a choice of means to accomplish lawful purpose.
      3.     Independent duty to interpret Constitution.

III.     Case opinions.

    A.     War Powers.
      War. The President has no power to formally declare war but may act militarily in actual hostilities against the U.S. without a congressional declaration of war. However, Congress, under its power to enact a military appropriation every two years, may limit the President.
      1.     The Prize Cases. Lincoln’s blockade of southern ports in 1861 is upheld as against “neutrals.”
      Majority: President has initiative, discretion, and express backing of Congress.
      Dissent: President lacks initiative and discretion, and Congress’ act of ratification was improper.
      2.     Mora v. McNamara. Issues in The Prize Cases raised again, but not answered.
      Foreign Relations. The President has paramount power to represent the U.S. in day-to-day foreign relations.
      3.     U.S. v. Curtiss-Wright. – “Initiative
        Issue: Whether foreign powers are broader than domestic powers?
        a.     External/Foreign affairs power is discretionary.
        b.     Internal/Domestic affairs power is obligatory.
        c.     Did Congress grant power to President, or merely coincide with the nature of executive power?
      4.     Woods v. Cloyd W. Miller Co.. An external power used to govern purely internal affairs. Federal rent control – Test: rent affects war emergency?
    B.     What is the nature of executive power?  – Youngstown Sheet & Tube Co.
      1.     Black’s opinion: an inquiry into the nature of executive power.
        a.     Power to execute laws requires:
          - constitutional grant of power; or
          - an act of Congress.
          - Gov’t argued “aggregation” or penumbra theory of power.
        b.     The nature of executive power precludes lawmaking.
        c.     Truman’s order looks like a statute:
          - Preamble states policy.
          - Statement of a rule to be followed.
          - Authority granted to regulate under the rule.
      2.     Jackson’s concurrence: President “personifies federal sovereignty.”
        a.     An elimination of executive discretion?
          - President’s powers controlled by Congress.
          - The nature of executive power changes with time.
        b.     Whatever happened to separation of powers?
          - separation of powers is a matter of convenience, not law.
          - no law of nature on the subject.
          - a matter of degree, not absolutes.
          - law evolves.
      3.     Vinson’s dissent:
          - the nature of executive power is initiative.
          - consistent w/ past executive practice.
          - initiative alone is sufficient to sustain the action taken.
      Q:     Why didn’t the court follow Woods v. Cloyd W. Miller Co.?
    C.     Treaties and Executive Agreements.
      1.     Treaty Power. The President has the power to enter into treaties with the consent of two-thirds of the Senate.
        a.     Supremacy. Treaties are on par with congressional acts in supremacy. See Hauenstein v. Lynham. State laws that conflict are invalid. A conflict between a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails.
        b.     Limitations. Missouri v. Holland, per Holmes. Few limitations on treaties, if any. Evolving standard of law used. A politically based analysis.
      2.     Executive Agreements. Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the Senate. If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
        a.     Belmont. If a state law conflicts with an executive agreement, the agreement prevails.
        b.     Pink. Executive agreements “have a similar dignity” w/ treaties! A perversion of the Supremacy Clause. Why are treaties and executive agreements very different? Agreements are not law – not approved by legislature, and executive has no lawmaking power.
        c.     Reid v. Covert. No foreign agreement can confer power on the federal gov’t or escape the restrictions of the Constitution. Reconcilable w/ Missouri v. Holland?
        d.     Dames & Moore v. Regan. President had no express power to suspend claims against Iran pending in U.S. courts. Why did S.Ct uphold this exercise of executive power? Follows Missouri v. Holland or Reid v. Covert?
    D.     Executive privilege/immunity
      1.     Executive Privilege. The President has a privilege to keep certain communications secret. National security secrets are given great deference by the courts.
        - Exception: In criminal proceedings, presidential communiques will be available to the prosecution, where a need for such information is demonstrated.
      2.     Executive Immunity. The President has absolute immunity from civil damages based on any action he took within his official responsibilities. If presidential aides have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning that area.
      3.     U.S. v. Nixon.
        a.     Does President have an independent duty to interpret the Constitution? But, Court equates constitutional interpretation with judicial power. Is that right?
        b.     Privilege: a form of protection of executive discretion.
        c.     REAL Issue: the power of the courts to issue a subpoena. Is anyone immune?
        d.     Military or diplomatic secrets distinguished: no judicial power over these.
        e.     What would happen if President had refused to obey the Court order?
    E.     Appointment and Removal
      1.     Appointment Powers. The executive appoints all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for, with advice and consent of Senate. Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.
      2.     Removal of Appointees
        a.     By President: The President can remove high level, purely executive officers (e.g., cabinet members) at will, without any interference by Congress.However, Congress may provide statutory limitations (e.g., removal only for good cause) on the President’s power to remove all other executive appointees.
        b.     By Congress: Congress may remove executive officers only through the impeachment process.
      3.     Morrison v. Olson. Congress created a special division of the Court of Appeals to appoint an executive officer (“Independent Counsel”).
        Issues addressed by the Court:
        a.     “Principal” v. “Inferior” officer. How to define?
        b.     “Interbranch appointments” – Can executive officer be appointed by judicial branch?
        c.     Article III power – Can judiciary define the jurisdiction of an executive officer?
        d.     Must President have ability to remove any executive officer “at will”?
        e.     Must all executive officers ultimately report to the President?
        The REAL issue: Can any federal official be “independent”?
        Note: From where does Congress derive the power to issue a subpoena (judicial function)?
        Dissent (Scalia):
        f.     Prosecutorial function is purely executive in nature.
        g.     Separation of powers is a matter of law (absolutes), not degree.
        h.     All executive officers must ultimately report to the President.
        i.     President must have ability to remove any executive officer “at will.”