Constitutional Law - 4/4 – Class 25
The Class discussion was centered on introducing Executive Power and setting up discussion of
the Meyers case.
Executive Power- Core separation of power issue
Con law that goes right down to the bone in terms of arguments and modes of reasoning.
Same arguments today that you saw in first congress in 18th century
Very controversial, in a way particularly controversially.
Core Idea- Separation of Powers
Basic High School civic stuff, No one branch should have too much power. There should
be another branch that holds another branch accountable.
Keep the government from being oppressive. Federalist paper 51
President was designed to provide energy and initiative. To deal with crisis.
Best to deal with short term crisis, I.E Terrorist attack, war, national defense.
Need for unitary branch of government to deal with crisis.
Executive Power is one of two issues in Constitutional Law I.
1. Scope of Congress
2. Executive Power
President’s power to use executive branch to carry out preferred policies or to act in times of
emergencies.
The President has inherent power.
In relation to executive function
The core fundamental question, Is the president a functionary who is supposed to run day to day
business as directed by congress, or source of independent powers?
Originalist argument on this question.
Straightforward structural arguments
More Presidential Power
1. Crisis Argument, President is only person with capacity to act swiftly in times of
crisis.
a. Independent power to deal with crisis
2. Mandate argument. President is only person elected by the entire country to represent
the country as a whole.
a. Centralized power can lead to too much power and tyranny.
i. President would lack institutional checks.
In England, not immediately before revolution, but centuries before there was a debate over
whether the King had a power over Parliament.
There is a long standing fear of royal or executive prerogative that we get from British
experience.
Textual arguments that come up.
Article 1.
All legislative powers…
Article 2.
Executive power should be vested in President
Lack of “Herein” is where the textual argument lies.
What is Executive Power?
We have standards of textual interpretation.
We view specifics as limitations.
Why did we go on and babble on other things?
Why would the framers need to be specific?
Do we really need to say that one branch that has all the power needs to get reports from
the other branches?
Be more careful. The issue is: If president has all executive power, why did framers
specifically say obvious stuff like that s/he may demand writting reports from subordinate
officials in the executive branch. If the framers felt the need to describe that power
specifically, doesnt it cut against inferring broad implied power?
A lot of the argument is messed around with by politics.
The President has grown in power.
This has happened through the collaboration of Congress.
If congress delegates legislative power to President, can they oversee the individuals the
President appoints?
Most of the time the answer has been no.
3 Stances
1. The President can fire officials whenever he wants
2. The President can fire officials with the approval of Congress
3. The President can’t fire officials without approval of Congress.
President has inherent power to fire executive officials.
Hamilton – Federalist 77
Said the opposite
During G. Washington Presidency, France was in War with other nations.
Washington issued neutrality statement.
Washington threatened prosecution for any Americans that got involved.
Arguments were made that inherent Executive Power didn’t exist.
Hamilton argues that Washington had power to issue that proclamation.
Madison said that Washington did not have that power.
Is declaring neutrality part of inherent executive power?
Johnson tried to put brakes on reconstruction.
Radical republicans tried restrain Johnson
10 year in office act
Tenure in office act
Passed over Johnson Veto.
Johnson broke that law, and Congress filed for impeachment.
Was spared removal by one vote.
Law was repealed several years later.
Saturday Night MassacreArt. 2 Sec. 3- Take Care Clause
President will take care that the laws be faithfully executed.
Some argue that this gives President Power to execute the laws notwithstanding that Congress
hasn’t authorized it.
Lincoln used this to imprison some people without trial for the duration of the Civil War.
Well, used arguments based on the idea to justify it
Isolate 2 Ideas:
1. Inherent Power – 3 positions
a. No Inherent Powers
b. Construal – We get the Presidents Power out of construal of text
i. Read a necessary and proper clause into Article 2
c.
Big Inherent Power – President has non-textual power that comes with being the
President.
i. President needs this very broad authority
2. 3 ideas on the scope of that power in relation to other branches
a. Only if Congress doesn’t say no
b. “Negative Space” idea – President can do things only when Congress hasn’t
debated an idea.
c. President has inherent powers against Congress
i. President can do things that Congress has forbidden.
Meyer
Majority Opinion- Taft, who was also President.
Paragraph 49Strong originalist idea.
What did Framers intend for Presidential Power?
Benson was concerned with the courts reading of the clause, “removable by the President”
First congress had an awareness of the future issues that their decisions might have.
Why would that be the case?
1. People in the 1st congress were also the Framers.
a. Framers may have written the arguments, but the people voted on it.
i. Public Meaning Originalism – What did the people vote for
4/4/16
Scope of Executive Power
Professor Gowder began class with a google image search of “Obama memes”
-class off to a good start
-executive power: core separation of powers issue
-executive power goes right down to the bone in terms of arguments and modes of reasoning that
we see in cases; we see the same arguments in today’s cases about executive power as we did in
18th century
-very undecided and very controversial
-focus on isolating the recurring arguments that come up; via Myers
-moving into more settled areas of law next
-in the next 2 weeks, we’re going to be broken up into groups for an extended hypo exercise (to
discuss out of class with groups, come up with arguments to present next week)
-exercise in counting skills, happy to learn all most of us can count (this got confusing—it’s
:-)
Monday)
separation of powers
-basic: if one branch has to get consent from others before doing something, they might be
prevented from doing bad stuff
-Federalist 51
-tension between idea of checks and balances, and need for unitary branch of government that
can deal with crises, is at the heart of controversy over executive power
-Executive power is one of the two great controversies of Con Law I (other controversy:
Congress’s scope over the economy)
-President’s power to use the executive power to carry out his/her preferred policies, or to act in
times of national emergency
-president’s inherent power: inherent to the executive function
1
-policy side/ core fundamental question: is the president merely a functionary whose job it is to
carry out instructions of Congress? Or is the president a source of independent, substantial
power, able to carry out an agenda independent of, or even contrary to, Congress?
-normative and structural arguments as well
-more presidential power (idea of president as an independent source of authority)
• Crisis argument: president is only person with the capacity to act swiftly in crisis, so we
must confer independent power on president to deal with crises
• Simple mandate argument: president is the only person elected by the entire country, who
is meant to represent the entire country
-key arguments against
• centralized power can lead to too much power, particular worry for executive because
executive lacks internal checks
• control over the military; fear of centralized executive power; ideas about avoiding the
kind of executive prerogative that the framers saw in the British Crown before the
revolution
-prerogative idea:
• in England, before the revolution, debate over whether the King had a power above and
beyond Parliament
• longstanding fear of royal or executive prerogative, source of fear since the framing
-textual arguments as well
• subtle but big: Article I vests legislative powers in Congress “herein granted”
o Article II: executive power vested in president
o No “herein granted”
§ Key feature in textual arguments regarding scope of power
• Those that think executive has inherent, unenumerated power: herein granted is a
limitation for Congress
• How much should we read into “herein granted?”
• Maybe these two words indicate the difference between a branch with strictly enumerated
powers and a branch with reserve unenumerated power
• Other side of argument: the founders did specify powers in Article II § 2
o Read specifics as limitations on the general?
o If president has all executive power, why were some powers specified?
§ Textual ambiguity
-political aspects as well
-the president has grown in power, Congress has delegated immense powers to the executive in
the course of creating the administrative state
more history
-historical sources necessary for understanding the debates
-question: does the president have the power to fire executive officials, inherently, without
needing it granted by congress
-decision of 1789: the first Congress had endorsed theory that the president has the inherent
power to fire executive officials
-but it’s unclear what the founders believed
-Hamilton (Federalist 77): the Senate’s power to consent to appointments also included power to
consent to firings
2
-argument for proposition that this was an important power that led to greater stability in
government
-Hamilton suggested that the Senate could reject presidential firings
-later Hamilton and Madison switched sides in a famous debate, during Washington’s term
• Washington’s Neutrality Proclamation was highly controversial
• Madison: attacks on presidential power, claiming there’s no inherent executive power
• Hamilton: Washington had the inherent executive power to issue this proclamation
• serious disagreement over what’s included in executive power
-debates about termination of officials
-debates about unilateral conduct of foreign affairs
2nd great removal debate
-removal power Andrew Johnson tried to exercise after assassination of Lincoln
-Johnson tries to slow Reconstruction
-radical republicans, in attempt to restrain president Johnson, enact tenure in office act
• criminalized executive’s firing of officials without Senate’s approval
• Johnson violated it, Congress responds with impeachment
-Tenure in office act repealed later
Saturday night massacre
-Nixon fires a ton of people, including attorney general, deputy attorney general
-controversy over the legitimacy of the president’s power to fire people in department of justice
Obama administration and DACA program
-Constitutional challenge to expansion of this program
-Texas and other states allege president violated administrative law, and that Congress (not
president) has authority to create and implement such programs
another textual note
-2nd source of president’s power: Article II § 3: take care clause
-constraint on president?
-or does it give the president power to execute the laws, notwithstanding the fact that Congress
has granted it
2 conceptual ideas:
1. Inherent power:
a. 3 possible positions
i. no inherent power (president is limited to the terms of the enumerated
powers in Article II)
ii. construal inherent power (get the president’s inherent power out of a broad
construal of textual grants) (reads a necessary and proper clause into
Article II) (even though Congress is granted that power…and Congress is
granted powers that are necessary and proper for other departments)
iii. big inherent power (nontextual power rooted in the office, need for
someone to exercise day to day sovereignty, like royal prerogative idea)
2. Scope of that power, relative to other branches, particularly congress
3
a. 3 possible positions
i. Only if Congress doesn’t say no (if Congress refuses to authorize
something, or if Congress forbids something, then the president can’t do
it; if Congress fails to authorize or forbid something, maybe the president
can do it)
ii. Negative space idea
iii. President has inherent power against Congress (president can do things
that Congress has actively forbidden)
Myers v. US (1926)
Background info:
-draw out the arguments the court deployed
-dirtiness of con law: Taft writing opinion about broad presidential power
-court goes into actions of first Congress
-strong originalist work; inferring propositions about scope of executive power by looking back
to first Congress
-decision of 1789; “to be removable by the president,” objection (by Benson) that this clause is
being read incorrectly
-Benson concerned that the removal power was act of legislative grace rather than inherent
executive right
-first Congress had awareness of future importance of this decision
-“public meaning” Originalism rather than “framers meaning” Originalism
• What we really care about is what the people would’ve thought
-key justification: not as if framers were acting in a vacuum
Good!
4
Outline for April 4, 2016
Myers v. United States
Facts: Myers was a former postmaster of the first class who was appointed in 1917 by the
President for a term of four years. In early 1920, Meyer’s resignation was demanded and when
Myer’s refused, he was removed by the Postmaster General at the direction of the President.
Procedural History: Court of Claims rejected a claim for the postmaster’s salary when he was
removed from office before the end of his term. Postmaster’s estate appealed on the basis that
order sanctioned by the President had been down without Senate approval.
Holding: President had the power to remove the postmaster from his appointment without the
approval of the Senate.
Reasoning: Historical and textual analysis concluding that the President has the power to remove
on inherent power that he gets from the ability to appoint executive officials. Absent a
constitutional or statutory provision specifically stating otherwise, the President can remove
executive officials.
Class notes
Core ideas
•
Idea that if any branch of government has to get consent, if prevents them from doing nasty
stuff
o Three branches are elected in different ways
o Helps balance out special interest groups influence
o Will keep the government from being oppressive
Executive Power
•
Tension of presidential power- Role is inherently different as it is one individual who deals
with crisis that could lead the nation to potential injury
•
One of the great controversies in Conlaw- Presidents power to use the executive branch to
carry out their duty
•
Questions of Executive power
o Is the president merely a functionary whose job it is to carry out Congress’s
instruction and execute a small section of specifically enumerated power?
o Or is the president the holder of significant power that can confront what
Congress has done in addition to executing enumerated powers?
Sides of the executive power argument
•
More power
o Crisis argument- President is only person with capacity to act swiftly so should at
least confer independent power
o Simple mandate- President is only person elected by the whole country
•
Less power
o Centralized power concern
§
Too much power in one place can lead to tyranny, limited internal checks
for the executive
§
Requiring statutory approval helps to prevent overuse of executive
prerogative
o Executive prerogative concerns
§
Historical background- English royal prerogative that was extensive and
fearsome that led to revolution
§
Long standing fear because of the British experience
Textual arguments
•
Article 1 vests Legislative power and Article 2 vests President
•
Enumeration vs inherent textual argument
o Those that think enumerative/inherent
§
“Herein granted” in A1 is limitation for Congress as compared to
President
o Other side
•
§
Section 2, A2 does list quite a bit of powers for the president
§
If the president was given all the executive power, why did they have to
list powers and why would the president have to ask for for opinion of
others in writing?
Constraint vs allowance textual argument
o Inherent power allegedly- “he shall take care that the laws be faithfully executed”
o Some see as a constraint- President can’t systematically refuse as that wouldn’t
be “taking care”
o Others think it gives power for the President to choose the means to execute the
laws and to give the power to himself to execute not withstanding Congress
Political issue related to executive power
•
The bipartisan system can often to lead to limitations/granting of executive power depending
on who controls Congress or the Oval
•
Historically changes to executive power
o President has grown in power
o Collaboration with Congress as Congress has delegated to President much of the
administrative state
§
Done through executive officials doing administrative business and they
report to the President
Debates throughout history regarding executive power
•
Does the president have the inherent power to fire executive officials? 3 basic positions
o Can fire no matter Congress says
o Fire only if congress doesn’t say no
o Fire only if explicit permission of Congress
•
st
1 debate- First Congress
o Decision of 1789- Endorsed the theory that President has the inherent power to
fire executive officials
o Hamilton in Federalist 77 claimed that Senate’s power to appoint also included
the power to fire
§
•
Madison and Hamilton had a very serious disagreement about just what
executive power was and the two flopped positions
2nd great removal debate
o Andrew Johnson- southern democrat and when he assumed the presidency after
Lincoln died, he tried to reverse reconstruction
o Enactment of tenure of office act by Congress
§
Criminalized the president firing of officials without the Senate approval
§
Ultimately repealed several presidents later
o Nixon and his Saturday night massacre
§
Nixon fired top level of Justice Department (spoiler alert: who just
happened to be investigating Nixon for his possible crimes)
§
Led to mass amount of controversy over President power
o Obama administration
§
Deferred Action for Childhood Arrivals
§
Administration has declined to enforce the law
2 conceptual ideas to Presidential power
•
inherent power: 3 possible positions
o no inherent power- strictly limited to terms of enumerated powers
o construal inherent power- get the inherent power out of a broad construal of
presidents powers
§
necessary and proper clause read into A2 but this seems shaky as if strictly
read it seems like Congress has the decision on how Presidents power
should be read into
o Big inherent power- President has non textual power rooted in the nature of the
office as someone needs to exercise day to day sovereignty for the country as a
whole
•
Scope of power relative to other branches (particularly Congress)
o Only if Congress doesn’t say no
§
If Congress refuses to authorize or forbids, then President can’t do
§
If Congress fails to forbid/authorize, the president can do
o “Negative space”- President can do things when Congress hasn’t considered the
question
o power against Congress- can do things Congress has actively forbidden
Meyers v. United States
•
Taft wrote majority opinion
o He was president before being a Supreme Court Justice
o Should raise your eyebrows because as if he was going to decide against the
president having the power
Section 49
•
Court starts going into careful parsing of the First Congress actions
o Originalist argument to infer presidential power from what the First Congress
debated on
•
Benson worries that it would would be read as Congressional grace rather then executive
inherent right
o First congress had an awareness of how their action would be interpreted and that
its decisions would be have precedential force
What is relevance of First Congress
•
Framers- many of the First Congress were Framers
o if we want to know what they thought about the terms of the Constitution, we
should look at what they did in Congress
•
First Congress original issue
o Framers were not acting in a vacuum as they were elected to Congress and to
speak for the people
o What the Framers thought was relevant for what the people may have thought=
public meaning originalism.
April5,2016
ClassDiscussion
FederalistNo.77
• TheconsentoftheSenatewouldbenecessarytoappointanddisplace.
• TheConstitutionshouldberatifiedtopromotestabilityofthegovernment.
• AnewPresidentcannotenterofficeanddrasticallyaltereverything.
• TheSenatemustaffirmativelyconsenttoanyfiring,justastheymustdo
forappointments.
• ThisstanceistheoppositeofthedeterminationoftheFirstCongress.
(seePara.64ofMyersv.UnitedStates)
InMyers,istheCourtconsideringwhetherthePresidentcanfireanofficialwithout
theSenate’sconsent,oristhisasub-issue?
• Presidentisattemptingtoremoveapostmaster.
• TheConstitutionsaysCongressisinchargeofregulatingthefiringof
postmasterswiththeadviceoftheSenate.(Para.21) ?????????????
Question1:AssumingCongresshasn’tlegislatedonthematter,maythePresident
Good!
removeanofficialthattheyhaveappointedwithoutcongressionalconsent?
Question2:SupposeCongresshaslegislated,doesthatchangewhetherornotthe
Presidenthasthepowertoremoveanofficialtheyhaveappointedwithout Good!
congressionalconsent?
• Therefore,doestheNecessaryandProperClausegrantCongressthe
authoritytodeterminehowremovalsareconducted?
DoesCongresshavetheauthoritytotakethispowerawayfromthePresident?
• ThepowergrantedtoCongressunderN&Pisbroad,andanargumentcanbe
madethattheClausegivesCongresstherighttohaveasayinremovals.
Good!
WhatabouttheTakeCareClause?
• IsthisClauseadutyorapowerthatisgrantedtothePresident?
Good!
Para.66ofMyersv.UnitedStates
• Coreseparationofpowersargument.
• However,howdoweknowwhetherremovingofficersisanexecutiveor
legislativefunction?
o ExecutivePower:tobeefficient,thePresidentisbestsuitedtocontrol
thismatter.TheseofficialstaketheirordersfromthePresidentonthe
day-to-day.TheseofficialsworkunderthePresidentandthereforehe
shouldbeabletosolelycontroltheirremoval.IfthePresidenthasto
getcongressionalapproval,hereallycannotexercisehisproper
•
authorityovertheofficialsunderhiscommand.Congressonlystands
toimpedethepowerofthePresidentinthissense.
o LegislativePower:efficiencycannotbetheonlygoal;theConstitution
wasalsodesignedtopreventtyranny.Congresswasintendedtohave
aroleinthisarea,thePresidentotherwisehasfreerangetodoashe
pleases.Wewanttoseparatethepowers,butthe“anti-tyranny”
concernhighlightsanothergoaloftheframers.
RequiringCongresstoconsenttoremovalsisagreaterburdenthan
requiringCongresstoconsenttoappointments.ThePresidenthasalarge
listofpotentialpeoplehecanappoint,andwillthereforehaveanacceptable
choice.However,ifthePresidenthasanofficialinofficethathebelievesis
unacceptable,hemaybesaddledtotheofficialbeyondhiscontrol.
TheEnumeratedPowersArgument
• TheConstitutionisspecificastohowCongresscanbeinvolvedinthe
businessofappointmentsofinferiorofficers.(Para.276)
• IfCongresshastheauthoritytovesttheappointment,thenCongressalso
veststheremovalincidentally.(Para.278)
• However,ifCongressisgiventhisgreaterauthority,doesn’tthatallow
Congresstogreatlyimpedethepurposeoftheexecutive?
• Theremovalpowerisapartoftheexecutive,andtheCourtholdsonto
a part
thisidea.
• ThereisaspecificprovisionthatgivesCongressthepowertohaveasayin
appointments(adviceandconsent,andinferiorofficers).Theseprovisions
arelimitationsonwhatCongresscando.Itshouldbeinferredthatthisis
alsoCongresscandowithinthisfield.
• Shoulditbeimpliedthatthereareothercongressionalchecks?
IfCongresswantstoseparateanofficialfromthecontrolofthegovernment,they
mustdosoentirely(andnotjustforappointments).A,“100%or0%,”argument.
MyersDissent
Para.371
• N&PClauseAppeal:textuallyspeaking,itseemslikeCongresshasthepower
toregulateremovalsalongwithappointments.
Para.386
• ThePresidenthasthedutytoseethatthelawsareexecuted.Butwhyshould
wethinkthatCongresshavingahandinremovalswouldbeaburdenonthe
executive?
• WhydoweassumethatthePresidentisresponsible,butthatCongressis
irresponsible?
Para.406
•
•
Executingthelawsfundamentallymeansdoingwhatthelegislature
requires.
Therefore,theexecutivepowermustbesubordinatetoCongress,because
theexecutivebranchisjustcarryingoutwhatthelegislativebranchhas
commanded.
IsgivingCongressacheckontheexecutivetheoppositeofaseparationofpowers?
Myersisnotacasethathasbeendiscussedforitsdoctrinalpurposes.Myersdoesa
goodjobofhelpingusunderstandthetypesofargumentsthatsurroundthese
issues.
FirstCongressdidn’twanttoimplythatthePresidentdidn’talreadyhavethis
poweronhisown.
Very good, except for the bit with the question
marks :-)
Myersv.UnitedStates(Brief)
272U.S.52
October25,1926
Facts:PresidentWoodrowWilsonremovedMyers,apostmasterfirstclass,without
Senateapproval.However,Wilson’sactionwasinconflictwithan1876lawthat
statedthatpostmasterscouldonlybeappointedandremovedbythePresident
whenhehadtheadviceandconsentoftheSenate.
Issue:ThequestionbeforetheCourtwaswhetherornotthe1876lawwas
unconstitutionalinitsrestrictionofthePresident’spower.
Holding:TheCourtfoundthatthe1876wasindeedunconstitutional,asitviolated
theseparationofpowersbetweentheexecutiveandlegislative.Therefore,the
Presidentheldtheexclusiveauthoritytoremoveofficialsfromtheirpositions.
Reasoning(Majority):
CoreSeparationofPowersArgument:theverypurposeoftheConstitutionwas
theseparationofpower,andthereforeitisthePresident’sfunctiontoremove
officersbyhisownaccord,withouttheinfluenceoftheotherbranches.The
President’sroleistoexecutethelawspassedbyCongress,andtherefore,heshould
beallowedtodeterminewhoactsunderhisdirectionintheexecutionofthelaws.
ThePresidentcannotexecutethelawsonhisown,sohemusthavecontrolover
thosewhohelphiminthisrole.RequiringCongresstoconsenttoaremovalisa
greaterburdenthanrequiringCongresstoconsenttoappointments.
EnumeratedPowersArgument:theConstitutionspecificallysetouthowCongress
canbeinvolvedinappointmentsofinferiorofficers,andbecauseCongresshas
vestedthepowerofappointment,thepowerofremovalinthePresidentis
incidental.TheCourtbelievesthatbyitsverynature,thepowertoremoveis
thereforeanexecutivepower.Congressionalpoweronappointmentisprovidedin
specificprovisions(adviceandconsent).Theseprovisionsarelimitationsonwhat
Congresscando,andCongressshouldnotbeallowedtogobeyondthiswithinthe
particularfield.
Reasoning(Dissent):
NecessaryandProperClauseArgument:Congressshouldhavethepowerto
regulateremovalsalongwithappointments,basedonalookatthetextofthe
Constitution’sN&PClause.Congresshastherighttodowhateverisnecessaryto
makesurethelawsitcreatesareproperlycarriedout.Seeparagraph371.
CongressionalCapabilitiesArgument:weseehereanotherexampleofthe
argument,‘anythingthePresidentcando,Congresscandojustaswell.’Thereisno
reasontothinkthatthePresidentiscapableofhandlingremovals,butiftheduty
wasputintothehandsofCongress,thatCongresswouldfail.Congressisnot
irresponsible;theyarejustaswellsuitedtoconsiderremovals.Seeparagraph386.
CongressionalAuthorityArgument:executingthelawsisessentiallyjustdoing
whatthelegislaturerequires.Inthissense,theexecutivepowerissubordinateto
thelegislativepowerofCongress.Theexecutive’sdutyistocarryoutwhatthe
legislaturehascommanded.Seeparagraph406.
MyPersonalNotesFromMyersv.UnitedStates
Whether under the Constitution the President has the exclusive power
of removing executive officers of the United States whom he has
appointed by and with the advice and consent of the Senate.
Madison’s arguments:
The very purpose of the Constitution was the separation of such
powers, and therefore it is the President’s function to remove officers
individually, without the influence of the other branches. (66-69)
It is the role of the President to execute the laws (as he is the
executive branch) and therefore, he should be allowed to select who
acts under his direction in the execution of the laws. The President
certainly does not execute the laws alone, so he must have control
over those who do his bidding. (75)
In the British system, the crown was charged with the executive
power, granting the power to appoint and remove executive officers, it
was therefore natural to think that the “executive power” in the
Constitution included the same. (78)
The power of the legislature to check the executive’s power to appoint
limits only that, and not the power to remove. The intended purpose
was to provide control over the appointment process, but this suggests
that there was no desire to limit removals. The power of removal is
different in nature from that of appointment, although the two are
related. The power to have a say in removals is a much greater
limitation. (83)
One fear was that the President may exercise his power in opposition
of the people, but the President is a representative of the people, and
is sometimes more representative of them as a whole than members
of the legislature. (95)
An argument posed against allowing the President the sole right to
remove officers is that absent an express grant of such power, the
Senate then holds the power under Section 8 of Article I. (109)
• However, if this interpretation was permitted, the legislature
would have greatly expansive power to exclude the President
from removal altogether if they chose.
Removal is the necessary incident of appointment. Congress is
explicitly given a role in appointment, and expressly given a role in
appointment and removal of such inferior officers. Therefore it may
follow that the removal of certain officers was intentionally excluded
from the rights given to Congress.
The executive power to remove is left unaffected by this implication.
(112)
It was not intended that Congress be left this discretion which could
seriously weaken the power of the executive, and blend the two
sources of power together. (118)
If this power was intended to be given to Congress, it would have been
done so expressly in the enumerated powers of Article 1, or the
specified limitations on the executive power in Article 2.
Is it correct to say that the power does not belong to the executive
until Congress so vests it? Congress creates the judicial power in this
way, but at the moment an office and its powers are created, the
power of appointment and removal, as limited by the Constitution,
vests in the executive. (130)
When Congress by law vests the appointment of inferior officers in the
heads of departments it may limit and restrict the power of removal as
it deems best for the public interest. The power to remove inferior
executive officers, like that to remove superior executive officers, is an
incident of the power to appoint them, and is in its nature an executive
power.
By Article 2, Congress only holds the power to appoint and remove as
it is granted within the Constitution. Therefore, Congress still controls
the matter of inferior offices, and not to appoint and remove other
offices. (283)
This is an attempt to curtail the powers of the President, to redistribute
the powers divided up in the Constitution, and destroy the principle of
executive responsibility. The separation of powers is eroding. (307)
If the President has his officials forced upon him, even after he chosen
to suspend that person, should the President be forced to continue to
have that official work for him? (311)
The provision of the law of 1876 which attempts to restrict the
President is his power to remove officers under his command is in
violation of the Constitution and therefore invalid.
DISSENT
There is no such thing as inherent power granted in the President.
The United States government is one of limited and enumerated
powers.
It is the legislature’s job to enact laws, and prescribe rules for the
regulation of society, while the execution of those laws is left to the
executive.
Therefore, the question is, is creating post offices, prescribing
qualifications, duties, compensation and term, may the legislature
protect the officer is his enjoyment of his term. Where is the limit
drawn on Congress’s power.
Congress has consistently asserted its power to prescribe conditions
concerning the removal of inferior officers.
The provision “be subject to the direction of the President of the United
States in performing the duties of his office,” was eliminated in the Act
of 1792, establishing roles, duties, etc. of the Postmaster General.
(418)
The dissent maintains that the framers never supposed orderly
government required the President either to appoint or to remove
postmasters. For 47 years, the President did not hold this right until
the 1836 Act granted it.
Congress may authorize both appointment and removal of all inferior
officers without regard to the President’s wishes; even in direction
opposition to them. And the dissent makes the distinct that this is why
Congress should have the final say on the Postmaster in this case.
Congress may have believed that the power to remove was held by
both President and Congress, when they originally voted, because both
had the power to appoint. Was it implied that the power to appoint
with consent also entailed the power to remove with consent?
The idea of “illimitable presidential power.”
The dissent believes that this would be the first time that the
President’s power will be extended in this way (by inference) and that
previous congressional interpretation has been expressly oppositional
to the current position. (465)
The argument is essentially that the history surrounding this issue
does not favor what the majority has concluded in the present case.
Certain powers granted in the Act suggest that the President was not
to be given an illimitable executive power, as was granted here
today.
Provisions in the Ordinance of 1787 gave the President and Congress a
shared power in removal of governors. This directly contradicts the
now held contention that only the President holds this power.
When the officer is not removable at the will of the executive, the
appointment is not revocable, and cannot be annulled. (Marbury)
An affirmative grant of special powers would be absurd, as well as
useless, if a general authority were intended. (574)
Day 26—
First, we started off class breaking off into groups for a group hypothetical we are going to work
on outside of class for the next couple of weeks, and will present in class.
Core Idea of Separation of Powers—Federalist Paper 51
Checks and balances of power between the three branches of government. This will
keep the government from being oppressive.
Tension between the checks and balances and the need for a unitary government to
deal with national crisis is at the heart of the controversy of Executive power.
Executive Power
Strong Independent Power in the President [centralized power]
Key Arguments
Crisis Argument—President is the only person to act swiftly in terms of
crisis.
Mandate Requirement—the President is the only elected official that is
elected to represent all people.
Arguments Against
Executive lacks internal checks. Requiring statutory authorization for
everything the President does acts as a check against ultimate power in
the President.
Prerogative Argument—Didn’t want the President to become like the
King of England. Long-standing fear of Royal Prerogative.
Article I, §1 v. Article II, §1
Article I, §1—“All legislative powers herein granted shall be vested in a Congress…”
Article II, §1—“The executive power shall be vested in a President…”
Argument—Article I, §1 the “herein granted” is a limitation on Congress’ power, and
since Article II, §1 doesn’t have “herein granted” all executive power is vested in the
President.
Counterargument—The Constitution does have a list of powers in Article II, §2. If the
President has all the executive power, then we wouldn’t need this specific list of powers
in Article II, §2.
Congress has delegated a lot of power to the President to set up the administrative state.
Does the President have the inherent power to fire executive officials?
Framers—
Madison endorsed the the position that the President has the inherent power to
fire executive officials.
Hamilton—Federalist 77—Senates power to confirm appointments also includes
the Senate’s power to confirm [or reject] firings.
Later [during George Washington’s term] , in a debate between Madison and
Hamilton, both of them switched sides on this issue. Both Madison and Hamilton
agreed that there was such a thing as inherent executive power, but they sharply
disagreed on what was included in the “inherent executive power.”
President Andrew Johnson—Tenure of Office Act [restricting Johnson's ability to fire
Cabinet officials]
President Johnson blatantly ignored the Tenure of Office Act when he fired
Secretary of War, Edwin Stanton.
Congress’ response was to try and impeach Johnson but it was unsuccessful.
Tenure of Office Act has since been repealed.
Take Care Clause of Article II, §3—“…he shall take care that the laws be faithfully
executed…”
Argument for Inherent Power—President can choose the means to executive
the laws; notwithstanding the fact that Congress hasn’t authorized it.
Three Possible Positions on Inherent Power—
(1.) There is not inherent power—President is strictly limited to the terms in Article II, §2.
(2.) Construal Inherent Power—We get the President’s inherent power from a broad
“construal” of expressed Presidential power.
This position would read a Necessary and Proper Clause into Article II.
(3.) Big Inherent Power—Proposition that the President has non-textual power rooted in
the office of the Executive to deal with the day to day.
Three Possible Positions on the Scope of that Power relative to other branches (particularly to
Congress)
(1.) Only if Congress doesn’t say “no”—If Congress refuses to authorize something or
forbids something, then the President cannot do it. If Congress fails to authorize/forbid
something, then maybe the President can do it.
(2.) “Negative Space”—President can do things if Congress hasn’t done anything.
(3.) President has Inherent Power, or some inherent power, against Congress—
President can do things even if Congress has forbidden it.
Myers v. United States—[Majority opinion written by Former President Taft]
¶ 49—Actions of the First Congress [strong Originalist argument]
Mr. Benson was concerned with the clause “to be removable by the President” in
the President meant that the power to remove by the President wasn’t inherent
but was delegated by Congress to the President. Mr. Benson argued that this
clause should be stricken.
First Congress had many of the same individuals that participated in drafting the
Constitution. Actions by the First Congress could give insight into what the
Framers were thinking.
Outline5APRIL2016
PartI:CaseBriefs
Myersv.UnitedStates,ProfessorGowderEdits
Facts:Anappointedpostmaster,firstclass,inOregonwasforcedtoresignbythePostmaster
General,actingunderauthorityofthePresident.
ProceduralHistory:Myersbroughtsuitunderastatute(theTenureofOfficeAct)providingthat
removalofpostmasterswastobedonewiththeadviceandconsentoftheSenate.TheCourtof
Claims(nowboththeFederalCircuitandtheCourtofFederalClaims)ruledforthegovernment.
Myersappealed;SupremeCourtaffirmed.
Holding:TheTenureofOfficeActisunconstitutionalbecauseitpreventsthePresidentfrom
removingexecutiveofficersbyhimself.Futureactswiththesameeffectwillbeunconstitutionalas
The tenure of office act was the old Johnson thing,
this was a specific act about postmasters
well.
Arguments:
Majority:
1) DiscussionsamongtheframersindicateintenttomaketheremovalpowerforthePresident
alone.Specificactions,suchasamendinglanguageregardingtheremovalpower,and
discussionssurroundingit,implyremovalinthePresidentaloneforfearoflegislative
instability.
2) TheExecutiveandLegislativebranchesaresupposedtobeseparate.Becausegreatpower
wasvestedinthePresident,andbecausethePresidentwouldneedsubordinatestoexercise
thatpower,thePresidentaloneshouldbeinchargeofpickingandremovingthepeoplehe
wantstoworkwith.TheSenateneededtohaveacheck,andsoappointmentapproval
madesense;removal,however,tendedto“blend”theexecutiveandlegislatureinsteadof
keepingthemseparateasintended.Challengestothatviewpoint,suchasthatitmaymake
thePresidentatyrant,orthatregulationofvestingofappointmentswouldsolvetheissue,
wererejectedbytheCongress,andshouldbesimilarlytreatedbythecourtanalyzingthe
issuetoday.
3) Hamiltonchangedhismind.AlthoughHamiltonarguedthatthepowerofremovalshouldbe
withtheadviceandconsentoftheSenate,hechangedhisposition,indicativeoftheforceof
theargumentspresentedinfavorofvestingthePresidentwiththesolepower.
Dissent(McReynolds):
1)ThePresidentshouldnotbeabletosimplyignoreCongressionallaws,becausehispoweris
appurtenanttothatofCongress,whoregulates.Furthermore,thePresident’sdutytoenforce
lawsmeansheshouldn’tbreakthemhimself.Evenfurther,thepostalsystemhasfunctionedfor
alongenoughtimewithoutthePresidentevenbeingabletoremovepostmastersthatthe
theoryof“necessitytoenforcelaws”seemsmeaningless.
2)TheGovernmentconsistsofenumeratedpowers;permittingthePresidenttoremoveofficers
withoutCongressionalconsentlacksalimitingprincipleandmayallowfutureexecutivepowers
unconstrainedbysuchanexpansivereadingoftheConstitution.Further,Congressshouldbe
assumedtoactproperlyandtonotconstraintheexecutiveinanymeaningfulway.Their
regulationofpresidentialactsisanecessarypartoftheirjob.
3)MarburyvMadisonandactionsofthepreviousCongresses,namely,theactofensuringto
alwaysincludearemovalpowerwithintheirlegislation,suggestthatremovalmustbewiththe
Senate’spower.Specifically,ifremovalisatthewhimofanexecutive,nolegalrighttoajob
exists,buttheCourtdecidedalegalrightinMarburyv.Madison,indicatingremovalbeing
withinthepurviewoftheSenate.
Dissent(Brandeis):
Separationofpowersfunctionstopreventtyranny,andnotforthepromotionofefficiency.
Further,HamiltonprovidesinFederalist#77thatremovalshouldrequireSenateapproval,and
silencefromtheFirstCongressshouldnotcountasevidenceonthetopicofremoval.
YoungstownSheetandTubeCo.v.Sawyer[TheSteelSeizureCase],pp.298-306
Facts:In1952,steelmillsthreatenedtoshutdownandstrike.PresidentTrumanorderedhis
SecretaryofCommercetoseizethemillstocontinueproductionforthewareffort.
ProceduralHistory:ThemillemployeesunionsuedtoenjointhePresidentintheDistrictCourtfor
theDistrictofColumbia.TheDistrictCourtgrantedtheinjunction,buttheAppealsCourtforthe
DistrictofColumbiastayedtheinjunction.TheSupremeCourtgrantedcertiorariandaffirmedthe
injunction.
Holding:ThePresidentlackstheauthoritytodirectseizureofsteelmills,eveniffornational
defense.
Arguments:
Majority1(Black):APresident’spowermustcomefromeitherCongress,ortheConstitution.No
seizureprovisionswereprovidedforsteelmillsunderexistinglegislation.Therefore,the
Constitutionmustauthorizetheaction,butnosuchprovisionexists.Thepositionof
Commander-in-Chieforgrantsoffaithfulexecutionoflawsdonotexplicitlygivethepowerof
seizure,andthusmustberejected.Further,thePresident’sseizureisonhisterms,not
Congress’,andanypreviousactionsdonotjustifyusurpingCongress’authority.
Concurrence(Frankfurter):Congressdidnotauthorizeseizure,butratherprohibiteditinthe
Taft-HartleyAct.Specifically,Congresssaid,“Youmaynotseize.Pleasereporttousandaskfor
seizurepower”.IntheabsenceofCongressionalauthorization,theonlywaytoobtainpowerto
actiswitha“systematic,unbrokenexecutivepracticeneverbeforequestioned,engagedinby
Presidents,makingitpartofthestructureofgovernment.”The“glossonexecutivePower”
theorydoesnotgivethePresidentseizurepower,however,becauseithadonlybeendoneina
fewinstances,whichdoesnotcountasacquiescencebyCongress.
Concurrence(Jackson):ThefluctuationofPresidentialpowersnecessitatesagroupingapproach:
1) ThePresidentactswithexpress/impliedauthorizationbyCongress.Here,the
Presidenthasallofhispowers,plusthoseauthorized,andthushehas“maximum
authority”.Theonlywaythisisunconstitutionalisifthewholegovernmentlacksthe
purportedpower.Thisgroupingisentitledtostrongpresumptionsofvalidity.
2) “TheZoneofTwilight”-intheabsenceofapprovalordenial,thePresidentmayrely
onlyonhisownpowers.Thetestofpowerdependsonthefactsofanyscenario
3) WhenthePresidentgoesagainstCongress’will,hecanonlyusehispowersas
constrainedbyCongress.Scrutinyandcautionarewarranted;Congressmustbe
foundtoexceedtheirpowersinordertofindforthePresident.
Jacksonfurtherarguesthatthesteelseizurefallsunderthethirdgrouping,becauseCongress
passedtheTaft-HartleyActtoprohibitseizures.Jacksonalsorejectstheexecutivevestingclause
becauseitwouldhaveenumeratedseizureasapower;rejectstheWarPowersclausebecause
tobeaCommanderoftheArmedForcesdoesnotimplymaintenance,asthatpowerisgivento
Congress;andlastrejectsthenotionof“inherentpowers”becauseCongresscanactifitso
chooses,andotherwisegivingthePresidentauthorityresultsinawideexpansionofPresidential
power.
Concurrence(Douglas):TheseizureconstitutesaregulatorytakingundertheFifthAmendment.
Becausecompensationisdue,andthePresidentcannotraisemoney,onlyCongresshasthe
powertoseizethesteelmills.
Concurrence(Burton):PresidentialactionisunwarrantedbecauseitinvadesCongress’authority,
asCongresshadalreadylegislatedontheproceduresforemergencysituations(whichwerenot
followed).
Concurrence(Clark):Congress’methodsforactionwerenotfollowed.Despitethatfact,the
President’spowertoactdependsonhowseveretheemergencyis.
Dissent:ThePresident’sdutytoexecutelawsrelatedtotheKoreanWarnecessitatesgoodsteel
pricing,andthus,seizureofmillsiftheywillshutdown.PastExecutiveshaveseizedaswell,such
aswhenRooseveltseizedaviationplants.Becausesuchactionoccurredintheabsenceof
statutoryauthorization,Truman’sactshouldbeseenassimilarlylegitimate.Furthermore,the
PresidentintendedtoabidebyCongress’rulesandtonotseekunlimitedpower.Rather,theill
ofinaction,thatis,playing“messenger-boy”whiletheprogramsunderpinningKoreaare
destroyed,isworsethananytemporaryoccupationthatcouldberegulateduponreturntotheir
owners.
PartII:In-ClassDiscussion
Federalist#77Discussion:
HamiltonarguesthattheconsentoftheSenateforfiringandappointingisnecessarytogovernment
stabilitytopreventincomingPresidentsfromsimplysackingthepreviousappointees.“Theconsentof
thatbodywouldnenecessarytodisplaceaswellastoappoint.
1. ThistrainofthoughtappearstobetheoppositeconclusionofthefirstCongress(para.64in
Myersv.UnitedStates,“Presidents’constitutionalpowerofremovalindependentlyof
congressionalprovision…weremasterly”)
a. SuggeststhattheviewsoftheFramerschangedbetweentheFederalistPapersandthe
FirstCongress,or,thattherewassomeconfusion
MyersvUnitedStatesDiscussion:
TheConstitutionisatissue,becauseitmaygrantthepowertoregulatethefiringofofficials,butalsoat
issueisastatutewhichprovidedthatremovalofpostmastersrequiredtheadviceandconsentofthe
Senate.ThisisadifferentissuethantheonefoundinFederalist77.
Distinguish:
1. AssumingthatCongresshasn’tlegislated,maythePresidentfireanappointeewithoutconsent
oftheSenate?
2. AssumingCongressHASlegislated,maythePresidentfireanappointeewithoutconsentofthe
Senate?(ThefocusinMyers).
a. Argument:CongresscanusetheNecessaryandProperClausetoregulatethe
Government;inthiscase,becausetheyappoint,theNPclausealsoallowsthemtobe
consentedfordismissal
i. Ifthisweretrue,itwouldmeanthateveniftheargumentinMyerswerecorrect
(thatthepresidenthasinherentfiringauthority)thattheCongresscouldsimply
takeitawayfromhim(maybeher,someday).
ii. NecessaryandPropervs.TakeCare
1. NPisincrediblybroadandappliestoeveryoneasa“power”
2. TakeCareisphrasedasaduty,notapower
DissectingTheArguments:
Constitutional ArgumentsFor
ArgumentsAgainst
Theory
Separationof
1. Constitutiontriestoseparate
1. Powerofremovalisnotan
Powers
legislativeandexecutivefunctions
Executivefunction.
2. RemovalisanExecutivepower
2. Constitutionisnotmeantsolely
becauseitisrequiredtorunthe
topromoteefficiency.Checks
Government.Otherwise,aninability
andbalancesarenecessaryto
tofirepeopleimpedes
preventtheNixonsand
efficiency/function
Johnsonsfrombeingtyrants.
3. Relativeburdens.Theburdenof
Forexample,shoulda
consultingCongressforfiringis
hypotheticalDonaldTrumpbe
muchgreaterthanthatofhiring;
abletosackmilitaryofficials
framersonlyintendedforSep.of
whowon’ttorturepeople?
Powerstocheckappointments.For
Probablynot.
example,whenhiring,thePresident
cankeeptryingappointeesuntilthe
Senaterelents,butwhenfiring,if
theSenatesaysnotherearenodooversandthePresidentisstuck.
Further,a“spirit”ofSeparationof
PowersexistsbecausetheSenate
getstocontroltheexecutivebranch
byregulatingwhogetstofillthe
recentlyopenedposition.
Enumerated
1.TheConstitutiondoesspecifyawaythat
1.Thereisn’tastrictseparationof
Powers
Congresscanregulateappointmentsand
legislativeandexecutivefunctions,as
removals.Paragraph276.Specifically,
indicatedbythetextallowingCongress
Congresscanmaketheappointmentof
tovestappointmentsandfiring.
inferiorofficersvested,thusfollowingthat
Becauseofthatfact,itwouldfollow
firingcanbevestedinsomeoneelseaswell. thatCongressshouldbeabletohavea
Paragraph278.Thisonlyapplies,however,
sayintheremovalprocessirrespective
whenCongressactuallydoesthat,which
ofwhetheritwasvested.
didn’thappenhere.
**WhatitComesDownto**:
TheRemovalClauseisquitesimplyonlyinthepurviewoftheExecutive.SeeParagraph121:“The
differencebetweenthegrantoflegislativepowerwhichislimitedtopowerstherein,andthemore
generalgrantoftheexecutivepower,issignificant”
TheDissent:
1. NecessaryandProperClause-BecauseCongresscanregulateappointments,itcanalso
regulatefiring.JustbecauseCongresswilltakethepowerawayfromtheExecutivedoesn’t
meanthatitwillbreakthegovernment,becauseCongresswilldoitsjobtoounderthe
NecessaryandProperClause.Para386.
2. ExecutiveActionMeansDoingWhatCongressSays-Althoughtheexecutivemaychoosetotake
action,theCongressregulateshowtheactionisdoes,suggestingthatthePresidentis
subordinatetoCongress.Para406.
**TherulethatMyersstatesisn’tverystrong.PGassignedthissothatwecouldgetthrownoffadiving
boardintotheworldofpresidentialpowers.It’sagoodcasetoseethemajorargumentsforandagainst
theConstitutionalissuesregardingExecutivePower.**
AbriefoverviewofYoungstown:
ConcernsabouttheKoreanWarledtoaseizureofasteelmill.Oncethedecisionwasannounced,the
steelmillspromptlywentonstrike.
Animportantfact:CongresshadnotauthorizedorforbiddentheseizingofsteelmillsbythePresident.
JusticeBlack’sOpinion:AuthoritymustcomefromeithertheConstitution,oranActofCongress,and
neitherofthosethingsexistsinthiscase.Discussiontocontinue6April2016.
OutlineforApril5,2016
PowerofPresidenttoRemoveOfficersWithoutCongressionalConsent
1. Federalist77-Hamilton
a. ArguesthatPresidentneedsSenateconsenttoremoveaswellasappoint,and
thisincreasesthestabilityofthegovernment
b. ContrarytotheconclusiondrawnbytheFirstCongressandMadison,that
PresidenthadthepowertoremoveindependentlyofaCongressionalprovision.
1) Case:Myersv.US
a. Facts:MyerswasappointedbythePresident,byandwiththeconsentofthe
Senate,asPostmasterofFirstClass.PresidentthendirectedthePostmaster
GeneraltoremoveMyersfromhispost.CongresshadpassedanActrequiringall
adviceandconsentofSenatetoremovePostmasters.
b. Issue:IstheActofCongress,requiringSenateconsentforremovalof
postmasters,constitutional?IfCongresshasspokenonthequestion,canthe
Presidentstillremove?
c. Held:ThePresidenthastheauthoritytoremovewithoutSenateconsent
pursuanttotheArticle2executivepowerofthegovernment.Congresscannot
provideforappointmentsandremovalsexceptforgrantedinregardstoinferior
offices.
d. Reasoning:
i. MadisonarguedintheFirstCongressthatthepowerofremovalwasa
poweroftheExecutive,independentofCongressionalprovisions.The
CourtexaminesMadison’sreasoningforcomingtothisconclusion.
1. Madisonreasonedthatafundamentalprincipalofthe
Constitutionwastheseparationofpowers.Inorderforthe
Presidenttobeefficientintheexecutionofhisrole,heneedsto
havecontroloverhisofficersandbeabletofirethemifneedbe.
2. Counterargument:Efficiencyisn’ttheonlyconcernofthe
Constitution.Itmustbebalancedagainsttheprotectionifaffords
fromtyranny.
ii. RequiringSenatetoconsenttoaremovalisamuchgreaterburdenthan
consentingtoappointment.
iii. EnumeratedPowersArgument:Congressisgiventwowaystheycan
messwiththepowerofappointmentandremovalofofficers:
a. adviseandconsentofappointment
b. vestingpowerforappointing/removinginferioroffices
2. ThesearetheonlywaysCongresscanmesswithpowers.
Althoughthepostmasterisaninferioroffice,becauseCongress
didnotvestthepowertoappointinsomeoneotherthanthe
President,theycan’tvestthepowertoremoveinsomeoneelse
either.
b. Dissent:
i. NecessaryandProperclausegivesCongressthepowertomakelaws
necessaryandproperforexecutionofpowersvestedinalldepartments.
1. ThePresidentdoeshavethedutytoexecutelawsandneedstobe
abletoruntheexecutivebranch,butwhyshouldwethinkthatif
CongressholdsthispowertheywillimpedetheExecutive’s
executionoflaws?NoreasonnottotrustCongresstodothe
responsiblethingandensuretheexecutivebranchisableto
performitsdutiesefficiently.
ii. TheExecutive’sjobistoexecutelaws,andlawscomefromCongress,so
Executive’sactionsarebasedonlawsCongresstellsthemtoexecute.
(Congressionalwill).
1. Theactualremovalofanofficerisanexecutiveaction.Butthe
conditionsoftheexecutiveactionareregulatedandprescribedby
thelegislationofCongress.
a. Analogy:Theactofhangingacriminalisanexecutive
action,butCongresssayswhenandhowthecriminal
shouldbehung.
2) Case:Youngstown
a. Facts:DuringtheKoreanWar,steelworkersthreatenedtostrike.Thedaybefore
thestrikewastobegin,thePresidentissuedanordercommandingtheSecretary
ofCommercetoseizethesteelmillsandoperatethemunderGovernment
power.Thereasoningbeingthatthesteelwasneededtomakeweaponsandthe
operationofthemillswasthereforeneededfornationalsecurity.
b. Issue:CanthePresidentdothiswhenCongresshasn’tauthorizedORforbidden
Presidentialaction?
i. ReasonswhyCongressmayhavebeensilentwhentheyconsidered
authorizingtheact:
1. Congressdidn’twantPresidenttohavethepower
2. Congressdidn’twanttoimplythatthePresidentdidn’thavethe
powerwithoutthegrant
Like with removal
c. Black’sMajorityHolding:TheauthoritymustcomeeitherfromtheConstitution
oranActofCongress.Sincenoauthorityexistsineitherplaceinthiscase,the
Presidentisnotauthorizedtoact.
i. Note that the concurrences interpreted Congress's
failure to authorize (when the question had come
before them) as equivalent to forbidding
Con Law Outline- 4/6/15
Youngstown Sheet & Tube Co. v. Sawyer (1952)
Procedural History: District Court for District of Columbia granted P’s (Youngstown) motion
for a temporary injunction against the seizure. The Court of Appeals stayed the injunctions. The
Supreme Court granted certiorari.
Facts: President Truman ordered Secretary of Commerce Sawyer (D) to take possession of and
operate most of nation’s steel mills. Ps argue President’s order amounts to lawmaking, a
legislative function which Constitution granted to Congress. Government claimed president
could act to avert national crisis (strike by workers during Korean War) that would result from
steel shortage. Congress never took action.
Issue: Whether President can order Secretary of Commerce to take possession of and operate
most of nation’s steel mills.
Holding: Decision affirmed. Congress did not grant President power to seize property to end
labor dispute. Constitution does not give President power to seize property as Commander and
Chief. Only Congress has ability to make law- Congress could make a law to seize property to
end labor dispute to avoid crisis.
Jackson Holding- 1. President has Congressional approval, possibly explicitly- Presidential
power at its highest. 2. President acting alone, Congress silent- Twilight zone, powers weaker
than #1 yet more than #3. President acting against Congress- President has executive powers still
but likely not other powers. #3 in case.
Rationale: If President had power, must have come from Constitution- Congress had not granted
it. Order cannot be upheld under President’s powers as Commander and Chief- cannot seize
private property to end labor disputes under it. President’s powers to oversee refutes idea he is
lawmaker. Even if done in past, Congress does not lose exclusive authority to make law on
subject.
Frankfurter Concurrence- Taft-Hartley Act shows Congress intended not to give president
power to seize property in manner he did.
Jackson Concurrence- 3 situations- 1. President has Congressional approval, possibly
explicitly- Presidential power at its highest. 2. President acting alone, Congress silent- Twilight
zone, powers weaker than #1 yet more than #3. President acting against Congress- Powers
weakest of all. 3 applies, can only find for President if Congress does not have authority on
subject. Article II does not grant all conceivable executive powers. Would be alarming to give
President ability to gain more internal control by seizure if he allocates troops to a foreign
affairs- Congress maintains armies and has that power. Has not acquired unstated powers from
previous administrations; lack of long history of doing so. Power to legislate in emergencies still
with Congress; Congress can handle emergencies.
Vinson Dissent- President has duty to execute legislative programs assuring financial support for
Korean War. Their success depends upon continued production of steel and stabilized steel
prices. Congress and courts have approved when presidents acting in emergencies- had done so
before. President informed Congress (never intended to act alone) Congress took no action
against.
United States v. Belmont (1937)
Procedural History: District Court dismissed the complaint. Court of Appeals affirmed.
Supreme Court granted certiorari.
Facts- Agreement to recognize USSR in 1933- USSR effected assignment to US of all Soviet
claims against Americans who held funds of Russian companies seized after Revolution. US
brought suit to recover funds under agreement. Lower court dismissed claiming violation of New
York policy.
Holding- Decision reversed. Negotiation and agreement within powers of President- agreement,
unlike treaty, did not require Senate’s participation. Court sustained validity of executive
agreement and held that it took precedence over conflicting state policy because of the
Supremacy Clause.
Dames & Moore v. Regan (1981)
Procedural History: United States District Court for Central District of California dismissed
case for failure to state a claim upon which relief could be granted. Appeal taken to United States
Court of Appeals for the Ninth Circuit. The Supreme Court granted certiorari before judgment.
Facts: On November 4, 1979 US embassy in Tehran seized and diplomatic personnel capture
and held hostage. President Carter, pursuant to International Emergency Economic Powers Act
declared national emergency and blocked removal or transfer of property and interests of
Government of Iran. On November 15, Treasury Department issued regulation making any
attachment, judgment, decree, lien, etc. null and void after date if Iranian interest existed. On
December 19, P (Dames & Moore) filed suit in District Court against Iran alleging its subsidiary
was party to written contract with Iran’s Atomic Energy Organization and that its interest in
contract had been assigned to P. Claimed it was owed more than $3.4 million. District Court
issued attachment against Iranian property. On January 20, 1981 hostages released pursuant to
Executive Agreement. President nullified attachments and liens on Iranian assets in US, direct
them to be transferred to Iran, and suspend claims against Iran in International Claims Tribunal
as part of the agreement between US and Iran. Claims Tribunal established to settle all matters
between two countries in six months. After, all claims nullified.
Issue: Did President have power to nullify attachments and liens on Iranian assets in US, direct
them to be transferred to Iran, and suspend claims against Iran in International Claims Tribunal
as part of Executive Agreement between US and Iran?
Holding: Decision Affirmed. President does not lack power to nullify claims against holdings of
foreign nations under International Emergency Economic Powers Act as authorized by Congress;
Congress had that power originally. IEEPA, Hostage Act, and International Claims Settlement
Act of 1949 indicate Congressional approval of government action on removing claims against
country that is party of Executive Agreement. Failure to act does not imply congressional
disapproval.
Category 1 claim?
Reasons: Some claims cannot fall into Jackson’s three categories. This claim included; though
Congress might have given power, could not have anticipated situations like this. Section 1702a1
of IEEPA allowed president to nullify claims against holdings of foreign nations. Citing Justice
Jackson, government argues President acting with Congress’ authority it was supported by
strongest presumption and widest latitude of judicial interpretation, and the burden of persuasion
would rest heavily on any who might attack it. Petitioner has not met heavy burden.
Government claims President acted under IEEPA and Hostage Act of 1868 to suspend pending
claims in American courts. Neither IEEPA nor Hostage Act specifically authorized action. Both
indicate Congressional acceptance of actions in given situation. Both acts grant President broad
powers in times of national emergency against property of foreign nations. Failure of Congress
to act does not imply congressional disapproval, especially in foreign policy. Enactment of
closely related legislation may be considered invitation for independent presidential
responsibility.
History of Executive Agreements under which President agreed to renounce or extinguish claims
of US nationals against country’s government. Congress has implicitly approved of those via
International Claims Settlement Act of 1949. Decision meant to be narrow to when powers are
granted to president in this area.
Medellin v. Texas
President (Bush) lacked authority to direct states to re-review prisoners’ death sentences under
Vienna Convention despite statement. Congress had power to make domestic laws in furtherance
of carrying out treaty obligations. Once treaty ratified without provisions for domestic
enforcement, up to Congress to make law making it so. Congress did not give president this
authority. No history of president attempting a Presidential directive issued at state courts; no
showing Congress approved of one.
-----------------------------Class Notes------------------------Youngstown Analysis
Jackson’s analysis has basically become majority.
Argument in Favor of Truman Having Power (found in Vinson dissent) –
1. War created national crisis; president best able to act in crisis.
2. Practical precedent- Other Presidents have exercised power before. FDR seized aviation plant.
3. Congress could have acted and did not when notice given- either authorization or acceptance.
4. Congress authorized war, President duty to execute war properly by maintaining steel
production.
5. Textual argument- Commander and Chief- Powers over war effort. Narrowest interpretation of
Commander and Chief- only give soldiers orders. Radical end- Could bring about all sorts of
domestic actions to help war effort. Ex- President orders a draft. Power lies somewhere in the
middle of radical and narrow interpretation.
Argument Against Truman Having Power (Mostly in Jackson concurrence)
1. Congress can and has handled crisis. Has done so in the past successfully.
2. Not a long history of precedent. FDR using it before is not a long history. Usually linked more
to older presidents like Washington or Jefferson.
3/4.
5. Procurement Power Allocated Explicitly- Constitution gives Congress power to maintain army
and navy. Thus Commander and Chief Power cannot extend procurement powers to the
President. Commander and Chief does not have power.
Jackson’s 3 part Presidential Powers in Relation to Congress
1. Express Authorization for what President does- President’s power basically unlimited within
scope of Congress.
2. President acting, Congress silent on issue- Twilight zone of power that is narrower than #1 but
more than acting against Congress. Some things allocated to Congress explicitly that President
cannot do if Congress silent. Not completely clear what twilight zone entails.
3. President acting against Congress- Presidential powers are weakest. President still has some
powers over executive functions such as presidential pardons. Other powers Congress has would
not be able to exert power over. Not clear what boundaries are. Ex- War powers resolution. Have
not officially declared war since World War II. Congress decides to fund wars or authorize
military action but not a war.
War Powers Resolution Hypo- Is it Constitutional?
History: Many in Framers generation did not like standing army. Could not have envisioned
armies on scale we have today, nor a giant standing army.
Argument For
1. President given explicit power to start war and should then have power to execute that war he
had ability to start.
2. Congress still has a check on military action via the funding clause- Presidents still have to go
to Congress for funding for long military efforts abroad.
3. Like Jackson’s #1 scenario where Congress has already given authorization for President to
have powers via resolution, thus he has those powers.
Blast Through Post-Youngstown
Belmont- Those who like federalism should be AFRAID!!!!! Executive agreement in
recognizing USSR and allowing US to bring suit against all those in US who have claims against
USSR. Court: Supremacy Clause allows this over competing State policy. What is limit in
President’s ability to enter into executive agreement?
Dames & Moore- Court decides a category 1 Jackson case- Congress approved some explicitly,
the rest implicitly- some stretches in logic in process. Court ducked question. Iran Hostage Crisis
background.
Medellin- Once treaty ratified without provisions for domestic enforcement, up to Congress to
make law making it so, not the President.
Youngstown Sheet & Tube v. Sawyer (Steel Seizure Case)
Background: President Truman sent troops into South Korea during the Korean War without
congressional approval. Instead of imposing pricing controls Truman created the Wage
Stabilization Board in an attempt to control inflation of consumer prices.
The United States Steel Workers of America were set to go on strike after the Steel Industry
refused to raise wages unless the government would allow the producers to raise the price of
steel beyond what the government was set to allow.
The threat of not having any steel being produced during a time of war led Truman to take
control of a majority of the Steel mills in order to keep them running. This was done without
mention to congress until after Truman had already had his Secretary of Commerce execute the
order.
Issue: “The constitution provides no statute that allows the President to take possession of
property as he did here. Nor is there any act of Congress to which our attention has been directed
from which such a power can fairly be implied.” Justice Black’s Opinion of the Court
Holding: Ruling upheld, seizure order cannot stand.
In class we discussed the Youngstown Sheet case and the differing viewpoints of Judges Vinson
and Jackson. We looked in depth at Jackson’s “test” and how it continues to apply to today’s
debates.
Vinson - Dissent
1. Crisis
a. National crisis, president should have power because the steel is needed for war
i. To what extent do we want to limit how a president acts in time of crisis?
2. Practical Precedent
a. Previous Presidents had the opportunity
i. Coalmines etc.
3. Congress could have acted/said no
a. Truman sent letter saying what he had done.
4. Congress has authorized the war/Congress saying “Win the War”
a.
5. Textual/Commander in Chief
a. Narrowest possible view
i. President can order attacks I.E Drone Strikes
b. Broader view
i. Beyond seizing steel mills, president can institute a draft or other measures
consistent with the idea of winning the war.
c. Where in between those lines does the Presidents power fall?
Jackson- Concurring Opinion
The Constitution
1.
Why trust one branch more than the other?
a. Congress has the ability to handle crisis.
b. Congress has handled crisis in the past.
2. What precedent?
a. Simple denial of any real precedent
3.
4.
5. Commander in Chief does not allow for procurement that is given by Constitutional
Procurement powers to Congress.
a. We know that there is a constitutional structure.
b. Congress is given certain powers.
Jackson 3 part
1. Express authorization
a. President has basic powers + what Congress has authorized
i. Maximum power
b. There are some powers that Congress cannot give to the President
2. Congressional Silence
a. “Twilight Zone”
b. Presidents power is limited to his/her independent powers.
i. There are some things that the President can do with Congressional
consent, but not if Congress remains silent.
3. President vs. Congress
a. Court would have to decide if the President has power over congress
i. Send troops into war without Congress assent?
Hypos:
1. Imagine the following law: Congress says President cannot pardon anyone convicted of
Cocaine possession.
a. Power to pardon is exclusive to the President
i. Congress lacks authority to tell President who may be pardoned.
If we give Congress the power to declare war, then we have to make that Power mean
something.