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Has the proper branch exercissed the power in the proper way?
- A. Each branch may exercise in accordance with requirements of specific clauses of the Constitution.
- B. No branch of the government may aggrandize its authority by unsurping power that more appropriately belongs to a coordinate branch
- C. No branch of government may encroach upon the functions of another branch making it difficult for the other branch to do its job.
Separation of Powers
- A. Congress has the power to make laws
- B. Executive has power to enforce those laws
- C. Judicial has the power to decide cases and controversies
Has the power been exercised in accordance with the requirements of specific clauses of the Constitution?
1. Appointments: The President, not Congress, has the authority to appoint federal executive officers, Congress also cannot remove executive officers except by impeachment (Morrison). Just as Congress may not directly appoint federal executive officers, it may not remove an executive officer, except by the special process of impeachment
No branch of the government may
aggrandize its authority by unsurping power that more appropriately
belongs to a coordinate branch
- 1. Performing the function of another branch: Congress makes the laws, the Executive enforces them, and the Judicial branch decides disputes concerning laws. In Youngstown (the steel seizure case), the Court held that President Truman's seizure of the steel mills consituted an exercise in legislative power and this was not permissible.
- 2. Important facts relevant to Youngstown
- a. Legislature did not authorize the Executive branch to use military force and thus there was no law that existed for President to ensure law was faithfully executed.
- b. The President was not close to the theater of war because the war was not in his "backyard"
- c. Jackson's 3 Part Approach:
- (1) Congress authorizes, triggering executive power-president possesses all own powers, plus any power Congress has delegated to him
- (2) Congress remains silent-President possesses express and implied powers, and
- (3) Congress rejects presidential power-President only has Article II power
- 3. Important Facts relevant to Hamdi:
- (1) Executive branch has limited authority during wartime and the war powers do not give the President a blank check
- (2) Necessary for Congress to set a long-term policy for dealing with terrorist action that is not formed in the middle of a crisis where the Executive branch might be tempted to give into demands in the short-term and hunt foreign policy in the long run.
- 3. Important facts relevant to Hamdi
No branch of government may encroach upon the functions of another branch making it difficult for the other branch to do its job.
- 1. Exercising control or supervision:
- a) Morrison v. Olson-Executive argued that a restruction of "good cause" requirement of independent counsel impinged on the executive's right to supervise and terminate executive branch officers for any reason. This was not enough encroachment, did not impede branch's ability.
- 2. Undermining the authority of another branch:
- a) Nixon-absolute executive privilege would undermine judicial branch's ability to function
- b) Clinton-allowing suit against the President would not undermine his ability to function as President
- 3. Qualified Privilege-balanced the interest in confidentiality (need for executive to have confidential communication) with the purpose for whcih it is sought (President's evidence in a criminal trial)
- -national security, type of trial, camera proceedings
Scalia's Functionalist v. Formalist Approach
- 1. Functionalists: view the powers of the branches as overlapping and not easliy distinguishable; the harm to be avoided is the excessive aggrandizement of one branch or gutting of another; they tend to take a flexible approach to resolving the conflict; the Court should defer to the political branches which can be trusted to look after their own.
- 2. Formalists: think powers of each branch can be catergorically distinguished; harm to be avoided is comminglings powers; the best way to do this is to adhere literally to the text; acrive judicial intervention is required-political safeguards are insufficient because the political branches are self-aggrandizing in the short term are likely to waive the long-term structural consideration
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