Sec. 4. Other Aspects of federal state relationship p.244
- Congress has the authority to solve the problem ; the Court also imposed judicially enforced restraints on state tax in the interest of the national economy under the dormant commerce clause
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, p.244
- State tax may be sustained against (dormant) commerce clause challenge when the tax is applied to (i) an activity with a substantial nexus with the taxing State, is (ii) fairly apportioned, does (iii) not discriminate against interstate commerce, and is (iv) fairly related to the services provided by the State
Ch. 6. Separation of power p.248
Sec. 1 executive violation of the separation of powers
2.. executive discretion in times of war and terrorism
3.. congressional violation of the separation of power
4.. executive privileges and immunities
Separation of power
- sought to safeguard against tyranny by combating excessive concentration ; “the purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments”
- vs. promote efficiency by, e.g., giving Congress power over national market, placing executive power in the singular person of President ;
Q –
- boundaries b/w executive powers and legislative authority any different in the domestic sphere than with regard to the making of foreign policy and the use of military force ?
- in what manner may Congress impose restraints on executive discretion?
- Art.II vest executive power in the President without qualification vs. Art.I “herein granted”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, p.249
- On the eve of a strike against steel companies, an executive order was issued directing the Secretary of Commerce (Sawyer) to take possession of most of the nation's steel mill ; the steel companies brought proceedings against the government, charging that the seizure was not authorized by an act of Congress or by any constitutional provision.
- issued executive order and next morning, president sent a message to Congress reporting this action ; Congress has taken no action
Issue
- Whether president Truman was acting within his constitutional power when he issued an executive order directing the Secretary of Commerce (Sawyer) to take possession of and operate most of the Nation’s steel mills
Argument
- The executive order amounts to lawmaking, a legislative function, which president has no power of vs.. a nation-wide strike, the indispensability of steel as a component of all weapons and other war materials led the president to believe that the work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary
Held (majority’s approach is “formalism”)
- The Executive Order directing the Secretary of Commerce to seize the plants of steel companies involved in labor dispute was invalid as exceeding constitutional power of President
- the president’s power (here, to issue Executive Order directing Secretary of Commerce to take possession of plants of steel companies involved in labor dispute) must stem from either from an act of Congress or from the Constitution itself ** always starting point **
- neither express nor implied authorization by Congress of president to take possession of property (DO the particular seizure)
- there are two statutes which authorize president to take possession under certain conditions, here, the conditions not met (DO- two statutes in general as to seizure)
- instead, Congress refused to adopt the seizure technique to solve labor disputes in order to prevent work stoppages in 1947
- (the Court characterizes the executive order as essentially law-making)
- no express constitutional provision granting power
- contention that presidential power is implied in (i) “the executive Power shall be vested in a President” ; (ii) that “he shall take Care that the Laws be faithfully executed”; and (iii) that he “shall be Commander in Chief of the Army and Navy of the United States”
why the executive order is law-making?
- the subject matter is the job of keeping labor dispute from stopping production
- (substance) Congress can make laws regulating relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions
- (form) where Executive Order directing Secretary of Commerce to seize steel mills set forth, (i) like statute, in its preamble, reasons why President believed certain policies should be adopted, and (ii) such policies were proclaimed as rules of conduct to be followed, and, (iii) again like statute, authorized government officials to promulgate additional rules and regulations (consistent with policy proclaimed and needed to carry that policy into execution)
(i), “the executive Power shall be vested in a President”
- The Congress rather than the President, is vested by the Constitution with lawmaking function, and President (executive power) is restricted (limited) to recommending laws thought wise, vetoing of laws considered bad, and seeing to the faithful execution of laws properly enacted
- Law-making power entrusted to Congress must be exercised by the Congress alone in both good and bad times
(ii), “he shall take Care that the Laws be faithfully executed”
- the executive order is characterized as law-making ; it is a direction which presidential policy to be executed, as opposed to “laws (enacted by Congress) are faithfully executed” ; (DO- here, there is no “Law” to be exected
(iii), he “shall be Commander in Chief of the Army and Navy of the United States”
- the job of keeping labor dispute from stopping production, is not the job for military authorities, but for law-makers, despite expanding concept of “theater of war”
Frankfurter, concurring,
- Marshall’s admonition in McCulloch that “it is a constitution we are expounding” **
o “ .. “ is especially relevant when the Court is required to give legal sanction to an underlying principle of the Constitution – that of separation of power … do not establish … black and white
- In fact, Congress said to the president, “you may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation”
- a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents … may be treated as a gloss on ‘executive Power’ vested in the President by s 1 of Art. II
- but, here, the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to (only) three … these three isolated instances do not add up, ... to the kind of executive construction of the Constitution
Jackson, concurring, (approach , functionalism)
- 1. when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. … a seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
- 2. when the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he (president) and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law
- 3. when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
- Here, (1) the first out, no congressional authorization for seizure, (2) the second out, Congress has not left seizure of private property an open field, but covered it by three statutory policies inconsistent with this seizure ;
- (3) rebut the three clauses of the Constitution (which government argues supported the executive order) ; (i) this clause is not a grant (in bulk) of all conceivable executive power ; (ii) he has no monopoly of war powers ; (iii) it is about due process clause ; in addition, a judge cannot accept the claim of inherent and unrestricted presidential powers
Dissent
- the Nation’s entire basic steel production would have shut down completely if there had been no Governmental seizure
- with or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs
**
- whether the executive order (exercise of presidential power) is law-making in nature
- act of Congress
- the constitution itself
United States v. Belmont, 301 U.S. 324, 1937, p.259
- Where Soviet government of Russia nationalized a Russian corporation having a deposit with a NY banker, appropriated its assets, and, as part of an international compact, assigned to the US government all claims against American nationals,,, alleged policy of the state of New York could not prevail against such international compact so as to prevent recovery by the United States of the amount of such deposit
- Governmental power over internal affairs is distributed between the national government and the several states, but governmental power over external affairs is not distributed, but is vested exclusively in the national government
- The public policy of the United States as declared in the Fifth Amendment that private property shall not be taken without just compensation has no extraterritorial operation ; what another country has done in the way of taking over property of its nationals is not a matter for judicial consideration, so long as no rights of American nationals … are involved
Dames & Moore v. Regan, 453 U.S. 654, 1981, p.260
- dispute involves various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the U.S. … in an effort to comply with an executive agreement between U.S. and Iran,
- Dames&Moore already filed suit in US court, and the court issued orders of attachment directed against property of the D ; after which, president issued executive order ;
- President’s action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization – IEEPA
- Presidential action taken pursuant to specific congressional authorization is supported by strongest presumptions and widest latitude of judicial interpretation, and burden of persuasion rests heavily upon anyone who might attack it
- Petitioner's interest in its attachment of Iranian property was conditional and revocable ; President's action in nullifying the attachments and ordering transfer of the assets pursuant to hostage release agreement did not effect a taking of property in violation of Fifth Amendment absent just compensation,, since petitioner did not acquire any “property” interest in its attachment of the sort that would support a constitutional claim for compensation
- Remaining question is president’s authority to suspend claims pending in American court
o Neither IEEPA nor Hostage Act constituted specific authorization for President’s suspension of claims if American citizens against Iran which were pending in US courts
- character of the legislation
o no specific authorization of president’s action ; the IEEPA is still relevant in the sense of indicating congressional acceptance of a broad scope for executive action
o general tenor of congress
o such failure of Congress specifically to delegate authority does not, especially in the areas of foreign policy and national security, imply congressional disapproval
- practice
o Settlements have been made by treaty, also longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate (See Headnote 5)
-
Sec. 2.. executive discretion in times of war or terrorism p.264
Congress
- Art.1.Sec.8.Cl.11 (declare war) ; Cl. 12&13 (raise and support Army)
President
- Art.2.Sec.2 commander in chief
Emergency Circumstances See p. 267
- Art.1.Sec.9.Cl.2 - The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it
(1), the Constitution is continuous, invariant in its basic premises even in time of war or crisis
- Ex parte Milligan, 71 U.S. 2
o President Lincoln’s suspension of the writ of habeas corpus had not properly empowered him to try and convict before military tribunals citizens who had been detained during the war
- “the constitution … a law for rulers and people, equally in war and in peace, … “
(2), all usual constitutional bets are off and the executive must have the latitude to assume greater unilateral discretion
-
(3), an intermediate position
- the laws will not be silent in time of war, but they will speak with a somewhat different voice
-
-
- Lincoln initially unilaterally suspended the writ of habeas corpus (1862), enabling indefinite military detention of draft resisters as well as ordinary criminals ; later, Congress ratified the suspension of the writ (1863)
- Ex parte Milligan, 71 U.S. 2 –
o though Lincoln’s suspension of the writ with Congressional authorization had been legal,, such an emergency provision could not constitutionally authorize the trial and conviction of a citizen detained during the war by a military tribunal rather than by a civilian court
o Milligan was a longtime citizen of IN, a non-rebellious state, and had never served in the armed forces
- Ex parte Quirin , 317 U.S. 1
o Question – whether the detention of petitioners for trial by Military Commission, set up by President on charges of violation of law of war is constitutional
§ (DO- the president’s power must stem from either from an act of Congress or from the Constitution itself )
o Presidential power as to war
§ (p.273) commander-in-chief, power to wage war, carry into effect all laws,
o Here, Congress has authorized trial of offenses against the law of war before the Military Commission
§ Question – whether is is constitutional to place petitioner before the Commission
o It would be unconstitutional if either not violation of law of war OR constitutionally triable only by a jury
o (distinction from Milligan) here, charged with violation of law of war, which the Constitution does not require to be tried by jury ; unlawful combatant ;; in Milligan, a longtime citizen of IN, a non-rebellious state, not an enemy belligerent, entitled to jury trial
o Here, violation of law of war, jury trial is not required,
Rasul v. Bush , 542 U.S. 466, 2004 , p.275
- Federal habeas corpus statute applied to petitions from Guantanamo detainees
Hamdi v. Rumsfeld, 542 U.S. 50, p.277
-
p.297 assessing Hamdi, Hamdan, and Boumediene
sec. 3.. congressional violation of the separation of powers
- How can Congress control the actions of such a greatly expanded executive branch ?
- How can the executive branch be kept democratically accountable?
- In principle, the constitutional grant of all legislative powers to Congress entails a principle of non-delegation – Congress may not constitutionally delegate its legislative power to another branch of government
- In practice, non-delegation doctrine has little bite
- “ the non-delegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power (Touby v. United States, 500 U.S. 160 )
- Only two cases in which the Court found a violation of the non-delegation doctrine p.301
- Non-delegation doctrine is weak in the domestic sphere, even more toothless barrier in the context of foreign affairs
- to maintain democratic control of the actions of the executive branch, e.g., congress keep control over executive actions by reserving to itself or one of its houses the power to overrule them ? to avoid the problem of agency “capture” by powerful private interest
Ins v. Chadha, 462 U.S. 919, p.302
- challenge the constitutionality of INA s.244(c.)(2), which authorizes one House of Congress to invalidate the decision of the Executive Branch to suspend deportation of a deportable alien if …
- The Attorney General suspended his (Chadha) deportation pursuant to the Act ; the House of Representative invalidated the suspension
- Policy argument – one-House veto is a useful “political invention” – are subject to the demands of the Constitution
- Art.1.sec.7.cls.2.3. - the requirement that all legislation be presented to the President before becoming law
- Rationale of Art.1.sec.7.cl.3 ;
- rationale of presentment clause – law-making was a power to be shared by both Houses and the President so as to protect the Executive Branch from Congress and to protect the whole people from improvident laws
- Art.1.sec.1.sec.7.cl.2 – no law could take effect without the concurrence of the prescribed majority of the Members of both Houses
- Rationale – legislative power would be exercised only after opportunity for full study and debate in separate settings
- the two concepts are inter-dependent
- (not all actions taken by one House) but only an exercise of legislative power is subject to the bicameralism and presentment requirements of Art.1
- whether or not an exercise of legislative power depends on not form but character and effect
- here, the action taken by one House is essentially legislative in purpose and effect
o Art.1.sec.8.cl.4. “establish an uniform rule of naturalization” – here, the action had the purpose and effect of altering the legal rights, duties and relations of persons
o The character of the congressional action it supplants – here, without the challenged provision, this (deportation) could have been achieved, if at all, only by legislation requiring deportation
o The nature of the decision - congress decision to deport Chadha – no less than congress’ original choice to delegate to the AG the authority to make that decision
- If the action taken by one House is an exercise of legislative power,, Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked
- When Framers intended to authorizes either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action
- Only four provisions
- Here, the challenged provision is not within any of the express constitutional exceptions
Powell, concurring
- When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country,, it has assumed a judicial function in violation of the principle of separation of powers.
- On its face, the House's action appears clearly adjudicatory. the House did not enact a general rule; rather it made its own determination that six specific persons did not comply with certain statutory criteria
Dissent
- 200 other statutory provisions in which Congress has reserved a legislative veto – legislative veto mechanism – become a central means by which Congress secures the accountability of executive and independent agencies
- Without the legislative veto mechanism, either to refrain from delegating the necessary authority, or, to abdicate its lawmaking function to the executive branch and independent agencies
- political invention that allows the President and Congress (i) to resolve major constitutional and policy differences, (ii) assures the accountability of independent regulatory agencies, and (iii) preserves Congress' control over lawmaking
test
- The Constitution does not directly authorize or prohibit the legislative veto ; Thus, whether the legislative veto is consistent with the purposes of Art. I and the principles of Separation of Powers
o We should not find the lack of a specific constitutional authorization for the legislative veto surprising
- The bicameralism and presentment clause does not answer this constitutional question
o Coz, the power to exercise a legislative veto is not the power to write new law … the veto … may only negative … the legislative veto no more allows one House of Congress to make law than does the presidential veto confer such power upon the President
Clinton v. City of New York , 524 U.S. 417 , p.310
Held
- Violated Presentment Clause
Standing
-
-
-
-
(majority) – Art.1.sec.7. approach (Presentment Clause, Veto Power)
- President's exercise of power under Line Item Veto Act to cancel item of new direct spending and item of limited tax benefit,, violated Presentment Clause,, by departing from “finely wrought” constitutional procedure for enactment of law,,, to extent President's action (to cancel item of new direct spending and item of limited tax benefit ) had both legal and practical effect of amending acts of Congress by repealing portions thereof, and did not come within his constitutional veto power
o No provision in the Constitution authorizes the President to enact, to amend, or to repeal statute
Concurring - unconstitutional delegation of legislative authority
- (not by categorical prohibition of Art.1.sec.7), by the doctrine of unconstitutional delegation of legislative authority
Dissent ** three relevant questions regarding Separation of Powers principles **
- When the President “canceled” the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law
- whether the Act nonetheless violates separation-of-powers principles
o -principles that arise out of the Constitution's vesting of the “executive Power” in “a President,” U.S. Const., Art. II, § 1, and “[a]ll legislative Powers” in “a Congress,” Art. I, § 1.
- three relevant separation-of-powers questions here:
o (1) Has Congress given the President the wrong kind of power, i.e., “non-Executive” power?
o (2) Has Congress given the President the power to “encroach” upon Congress' own constitutionally reserved territory?
o (3) Has Congress given the President too much power, violating the doctrine of “non-delegation?”
- (1), the power the Act conveys is “executive” – to spend or not to spend appropriations – an authority that Congress has frequently granted the President
- (2), one cannot say that the At encroaches upon Congress’ power when a provision says the Act will not apply upon president’s line veto ; Congress (i) drafts and enacts the appropriations statute, (ii) defines the outer limits of the President’s cancellation authority, (iii) retains the power to disapprove any of the President’s cancellation ; Nor the Act “aggrandizes” the Presidential office, coz the grant is limited to context of the budget
- (3),
o The Constitution permits Congress to “see[k] assistance from another branch” of Government, the “extent and character” of that assistance to be fixed “according to common sense and the inherent necessities of the governmental co-ordination.” ;
-
o One, Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), the other case,A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), involved a delegation … that contained not simply a broad standard (“fair competition”), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry, … which created a “roving commission …
o The case before us does not involve any such “roving commission,” nor does it involve delegation to private parties, nor does it bring all of American industry within its scope. It is limited to one area of Government, the budget … in one portion of that budget, to tailor spending and special tax relief
Buckley v. Valeo, 424 U.S. 1, U.S. Const. art. II, § 2, cl. 2 Appointment Clause p.315
- Under the Federal Election Campaign Act, a majority of FEC members was appointed by the Presidnet pro tempore of the Senate and the Speaker of the House ; the FEC was given enforcement power such as instituting civil actions against violations of the Act as well as extensive rule-making and adjudicative powers
- Held - that U.S. Const. art. II, § 2, cl. 2, required that most of the powers conferred by the Act upon the FEC (Commission) could be exercised only by officers of the United States. The court held that the Commission's present membership was invalid.
- ** who (which position) is within the Appointment Clause ?
Bowsher v. Synar, 478 U.S. 714, p.317
- The question is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers.
The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts (DO- supervision includes removal)
- Congress cannot reserve the power of removal of an officer charged with the execution of the laws except by impeachment
o Art.2.Sec2. once the appointment has been made and confirmed … removal … by Congress only upon impeachment
o If officers charged with the execution of the laws answerable to Congress, Congress control over the execution of the laws
o in essence, permit Congressional veto
because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. … question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985
- the ultimate authority to determine the budget cuts to be made, functions plainly entailing execution of the law in constitutional terms
here
- the Comptroller General's role in the deficit reduction process violated the constitutionally imposed separation of powers
- ** an active role for Congress in the supervision (removal) of officers charged with the execution of the laws
Dissent
- agrees that “the powers exercised by the Comptroller under the Act may be characterized as ‘executive’ in that they involve the interpretation and carrying out of the Act's mandate ( ** the meaning of executive , legislative à. Art.1.Sec.8)
- In other words, a removal of the Comptroller under the statute satisfies the requirements of bicameralism and presentment laid down in Chadha
Myers v. United States, 272 U.S. 52, p.320
- Held unconstitutional a statute providing that certain groups of postmasters could not be removed by the President without the consent of the Senate
Humphrey's Ex'r v. United States, 295 U.S. 602 , p.320
- Congress could limit the President’s power of removal of Federal Trade Commissioners to removal for cause and limited Myers to “purely executive officers”
- The FTC cannot in any proper sense be characterized as an arm or an eye of the executive ; rather in part quasi-legislative and in part quasi-judicially
Possible constitutional problems with having agencies with executive powers independent of the President in the first place p.320
Humphrey’s Executor principle extend beyond the independent agencies to any other office calling as a practical matter for independence from the President ?
- ? “independent counsel” to investigate alleged wrongdoing by the President or their high-ranking appointees ?
Morrison v. Olson, 487 U.S. 654 , p.322
Question
- The first is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances (in which he can show "good cause," taken by itself,) impermissibly interferes with the President's exercise of his constitutionally appointed functions (removal) ;
- The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel
First
- (1), whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, (DO- re-phrase the question of removal into the context of functionalism)
- the functions performed by the independent counsel are "executive" in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch
- we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional [*692] law that the counsel be terminable at will by the President
o (DO- the function by the independent counsel is executive, and with lots of discretion, however, the discretion does not impede the President’s ability ; President not need to control the discretion )
- (2), Nor do we think that the "good cause" removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act
- (here,) congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office
Second
- (1), Congress vis-à-vis executive - this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch ; Congres’ role under the Act is largely limited to …
- (2), court vis-à-vis executive - we do not think that the Act works any judicial usurpation of properly executive functions ; once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel
- (3) vis-à-vis executive - we do not think that the Act "impermissibly undermine[s]" the powers of the Executive Branch ; the Act reduces the amount of control or supervision … over the investigation and prosecution of a certain class of alleged criminal activity … (but) retains the power to remove the counsel for “good cause”
Dissenting
- < Article II, § 1, cl. 1, of the Constitution >
o “The executive Power shall be vested in a President of the United States”
o this does not mean some of the executive power, but all of the executive power
- two questions to be presented in the context of fundamental separation-of-powers principles
o (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise [***615] of purely executive power?
o (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?
- the restrictions upon the removal of the independent counsel also violate our established precedent
o (1) that the President's power to remove principal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U.S. 52, 127 (1926)
o (2) could be restricted, at least where the appointment had been made by [*724] an officer of the Executive Branch Humphrey's Executor v. United States, 295 U.S. 602 Thus, removal restrictions have been generally regarded as lawful for so-called "independent regulatory [*725] agencies," such as the Federal Trade Commission
o But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. (DO- but not here, prosecutorial authority of independent counsel is out of control of the President)
- The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President -- and the people -- more protection than that
- Under our system of government, the primary check against prosecutorial abuse is a political one
o The prosecutors … can be removed by a President, whom the people have trusted enough to elect
o When crimes are not fairly investigated, the President pays the cost in political damage to his administration
Mistretta v. United States, 488 U.S. 361, p.326
- Sentencing committee
Sec. 4.. e3xecutive privileges and immunities p.329
- Member of Congress – Art.1.Sec.6.cl.1 vs. no specific privileges and immunities for President and members of the Executive Branch à. Court-developed implied executive privileges and immunities
United States v. Nixon, 418 U.S. 683, p.330
- The President invoked executive privilege to avoid compliance with a third-party subpoena duces tecum that required the production of tape recordings and document, concerning meetings between the President and his aids
Held
- dispute was justiciable;
- that District Court was not shown to have erred in determining that special prosecutor's showing of relevancy, admissibility, and specificity was sufficient to warrant issuance of order;
- that President's generalized interest in confidentiality, unsupported by claim of need to protect military, diplomatic, or sensitive national security secrets,, could not prevail against special prosecutor's demonstrated, specific need for the tape recordings and documents for use in pending criminal prosecution
reasoning
-
- Absolute presidential privilege, against judicial process in pending criminal prosecution, based on generalizes claim of the public interest in confidentiality, absent a claim of need to protect military, diplomatic, or sensitive national security secret,, would upset the constitutional balance of “a workable government” and impair the role of the courts under Art.3
o A President's acknowledged need for confidentiality [*713] in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice
-
o Presidential communications are presumptively privileged, and such privilege is fundamental to operation of government and inextricably rooted in separation of powers under Constitution
Nixon v. Fitzgerald, 457 U.S. 731
- a former government employee, filed a suit against petitioner, a former United States President, for retaliatory discharge
- the President is absolutely immune from civil damages liability for his official acts – at least in the absence of explicit affirmative action by Congress
- protect the President from such suits would avoid rendering him unduly cautious in the discharge of his official duties
- remedy – impeachment ; formal and informal checks on presidential action
o constant scrutiny by the press ; vigilant oversight by Congress ; re-election
Clinton v. Jones, 520 U.S. 681
- (1) Constitution does not afford President temporary immunity, in all but the most exceptional circumstances, from civil damages litigation arising out of events that occurred before he took office;
- (2) doctrine of separation of powers does not require federal courts to stay all private actions against President until he leaves office; and
- (3) District Court abused its discretion in deferring trial until after President left office
Held
- The principal rationale for affording certain public servants immunity [***960] from suits for money damages arising out of [*693] their official acts is inapplicable to unofficial conduct
- In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability
- That rationale provided the principal basis for our holding that a former President of the United States was "entitled to absolute immunity from damages liability predicated on his official acts," Fitzgerald, 457 U.S. at 749
- This reasoning provides no support for an immunity for unofficial conduct
Note
< the danger of distortion vs. distraction>
- First, the danger that fear of lawsuit will distort policy-making, and à. Fitzgerald,
