Constitutional Law Test #2

Explain the three key theories of presidential power and identify a proponent of each.

• Constitutional Theory (Taft): The President may only act within powers expressly granted or necessarily implied by the Constitution. Taft said the President “can exercise no power which cannot be fairly and reasonably traced to some specific grant.”

• Stewardship Theory (T. Roosevelt): The President should do anything not forbidden by law to serve the public interest; acts as a “steward of the people.”

• Prerogative Theory (Lincoln): In emergencies, the President may act beyond or even against the law to preserve the nation. Lincoln invoked this in the Civil War (e.g., suspension of Habeas Corpus). Modern “unitary executive” proponents expand this idea.

Based upon the arguments raised in Bush v. Gore, answer the following questions:  Did the Florida State Supreme Court violate federal law by altering election procedures put in place before the election? And did the same court violate the Equal Protection Clause of the 14^th Amendment when it ordered a recount to take place without setting a single uniform standard for determining voter intent?

• Federal law: Yes. The Court said Florida’s Supreme Court violated Article II by changing election rules set by the state legislature after the election, overstepping its judicial role.

• Equal Protection Clause: Yes. Because different counties used inconsistent standards for counting votes, voters were treated unequally, violating the 14th Amendment.

• Case Summary: The Court halted the recount, giving Florida’s electors—and the presidency—to George W. Bush.

Summarize the 22^nd and 25^th Amendments as they relate to Presidential terms and succession.

• 22nd Amendment (ratified 1951): limits a U.S. president to being elected to the office of president no more than twice. Additionally, if a person serves more than two years of a term to which another person was elected, they can only be elected president one more time.

• 25th Amendment (ratified 1967): clarifies presidential succession and disability by stating the Vice President becomes President if the President dies, resigns, or is removed. It also provides a process for the President to nominate a new Vice President if that office becomes vacant and establishes a mechanism for the Vice President to become “acting president” if the President is unable to do their job. 

• The 22nd Amendment limits a president to two elected terms, while the 25th Amendment clarifies presidential succession and disability. Specifically, the 22nd Amendment states a person cannot be elected president more than twice, or more than once if they served more than two years of a previous term. The 25th Amendment establishes that the Vice President becomes President upon the President’s death, resignation, or removal, and provides a process for filling a vacancy in the vice presidency and for handling presidential disability.

Explain how the USSC makes a constitutional distinction between the traditional presidential veto and a line-item veto in Clinton v. City of New York.

• Traditional veto: The President must accept or reject a bill in full.

• Line-item veto: Allowed canceling parts of bills after signing them into law—violating the Presentment Clause and separation of powers.

• Result: The Line Item Veto Act (1996) was struck down as unconstitutional.

• In Clinton v. City of New York, the Supreme Court established a constitutional distinction by ruling that the traditional presidential veto applies to an entire bill. In contrast, the line-item veto was an unconstitutional grant of power to the President. The Court reasoned that the Constitution’s Presentment Clause requires the President to either sign or reject the entire bill, and that the line-item veto, by allowing the President to cancel specific parts of a law unilaterally, gave the President the power to amend legislation, which violates the separation of powers.

Explain why a majority of the Court in Morrison v. Olson determined that the independent counsel act did not violate the “Appointments Clause,” Article III, or the separation of powers.

• The independent counsel was deemed an “inferior officer” who could be appointed by the judiciary.

• Limited removal by the Attorney General for “good cause” didn’t violate separation of powers.

• The Special Division that appointed the counsel didn’t impermissibly intrude on the executive branch.

• Result: Act did not violate the Appointments Clause, Article III, or separation of powers.

• The Supreme Court in Morrison v. Olson upheld the Independent Counsel Act against challenges to the Appointments Clause, Article III, and the separation of powers because the independent counsel was an “inferior officer” who could be appointed by the judiciary. The Court determined the Special Division of the court that appointed the counsel did not violate separation of powers because it did not impermissibly interfere with the executive branch’s core functions, and the independent counsel’s limited removal by the Attorney General for “good cause” was permissible.

What is the key distinction the Court makes regarding the President’s removal powers in Myers v. U.S. and Humphrey’s Executor v. U.S.?  Do you agree with this Constitutional distinction? Why or why not?

• Myers: The President can remove purely executive officials at will (e.g., postmaster).

• Humphrey’s Executor: Congress may limit removal for members of independent, quasi-legislative or quasi-judicial agencies (e.g., FTC).

• Personal opinion: I think it makes sense because it keeps some parts of the government independent and fair. Not everything should change because the President does, but I know some people disagree and say the President should have full control since he’s in charge of the executive branch.

• The key distinction is that Myers v. U.S. established the President’s broad power to remove “purely executive” officers, while Humphrey’s Executor v. U.S. limited this power for officials in “quasi-legislative” or “quasi-judicial” roles, such as those in independent agencies like the Federal Trade Commission (FTC). Myers held that removal restrictions on executive officers interfere with the President’s constitutional duty to oversee the executive branch, but Humphrey reasoned that the President’s removal power is not unlimited, especially when Congress creates independent bodies to perform non-executive functions.

What is executive privilege and why did President Nixon lose his claim on this basis in U.S. v. Nixon?

• Executive privilege: The President’s right to keep certain communications confidential to protect national security or candid advice.

• Executive Priveldge is the implied power claimed by the president and other executive branch officials to withhold certain confidential communications and information from the legislative and judicial branches to maintain the separation of powers and ensure candid advice from advisors. The privilege is generally asserted to protect the confidentiality of high-level decision-making processes, national security, or diplomatic secrets. 

• Nixon lost: The Court ruled privilege isn’t absolute; it can’t be used to withhold evidence in a criminal investigation.

Explain two arguments that Chief Justice Burger makes in striking down legislative vetoes in INS v. Chadha.

• Violation of bicameralism & presentment: Lawmaking requires passage by both Houses and presentation to the President; one-house veto bypassed this.

• Separation of powers: Legislative veto let Congress exercise executive power without accountability, undermining checks and balances.

Identify four rationales for Congress delegating legislative powers to executive branch agencies and institutions.

1. Expertise — Agencies have technical knowledge.

2. Speed & flexibility — Can respond faster than Congress.

3. Administrative convenience — Congress can’t handle all details.

4. Political cover — Avoid blame for controversial decisions.

• Expertise & technical complexity.
  Modern problems (environment, banking, health) require specialized knowledge. Agencies can hire experts and make detailed technical rules that Congress cannot efficiently craft.
  
  

• Speed and flexibility.
  Agencies can respond faster and adjust regulations to changing circumstances than the slower legislative process of Congress.
  
  

• Administrative convenience/workload management.
  Congress cannot write and police every detailed rule; delegation lets the federal government implement and enforce complex programs efficiently.
  
  

Political cover and blame-shifting.
Delegation lets elected officials avoid politically costly decisions; Congress can pass broad policy and let agencies handle controversial details, giving legislators plausible deniability.

Identify and explain three reasons the Court ruled against President Clinton in Clinton v. Jones.

1. No absolute presidential immunity for unofficial acts.
   The Constitution does not grant the President blanket immunity from civil suits for actions that are private or unofficial; immunity established in other contexts (e.g., absolute immunity for core official acts in Nixon v. Fitzgerald) does not extend to purely private conduct.
   
   

2. Separation of powers does not require staying private litigation against the President.
   Allowing courts to hear private suits against a sitting President does not impermissibly interfere with the President’s ability to perform constitutional duties. The judiciary can manage proceedings (scheduling, protective orders) to minimize disruption.
   
   

Procedural accommodations suffice; burden alone is insufficient.
The burdens and distractions alleged by the President (time, attention) are not categorically sufficient to require deferral of the case until after the presidency. The judicial branch can protect presidential functions short of granting immunity.

Identify and explain three rationales the Court uses to justify the President’s actions in The Prize Cases.

1. Existence of de facto war/insurrection justified defensive action.
   The Court held that the President may act to repel a hostile force when facts (rebellion, attacks) create a state of war even if Congress has not yet formally declared it.
   
   

2. Commander-in-Chief and inherent war powers.
   The President, as Commander-in-Chief, has authority to protect the nation and repel invasions or insurrections; exigent circumstances permit measures essential to national defense.
   
   

3. Necessity and practical governance — Congress can later ratify.
   The realities of national defense require prompt action; the President’s emergency measures are permissible, and subsequent Congressional ratification does not retroactively change their legitimacy (though in the Prize Cases the Court found the blockade justified by the facts themselves).

Briefly compare and contrast the Court’s rulings regarding the president’s use of military tribunals in Ex Parte Milligan, Ex Parte Quirin, and Hamdi v. Rumsfeld cases.

• Milligan (1866): Civilians can’t be tried by military tribunals if civil courts are open.

• Quirin (1942): Military tribunals allowed for unlawful enemy combatants (e.g., Nazi saboteurs).

• Hamdi (2004): U.S. citizens may be detained as combatants, but must receive due process to challenge detention.

• Contrast: Milligan = civilian rights; Quirin = military power; Hamdi = balance of both.

Ex Parte Milligan (1866) — overview
Civilians in Indiana were tried by military commission during the Civil War even though civilian courts were open. The Court held that military tribunals could not try citizens where civilian courts were functioning; civilian trials are required absent extraordinary circumstances and suspension of habeas corpus.

Ex Parte Quirin (1942) — overview
German saboteurs (one a U.S. citizen) captured in the U.S. were tried by military commission. The Court upheld the use of a military tribunal for unlawful enemy combatants (sneaking into the U.S. in civilian clothes) and distinguished lawful combatants and ordinary civilians.

Hamdi v. Rumsfeld (2004) — overview
Yaser Hamdi, a U.S. citizen captured in Afghanistan and designated an “enemy combatant,” challenged his detention. The Court held the government can detain enemy combatants, including citizens, but detainees must be afforded due process to challenge their status before a neutral decisionmaker.

Identify and explain the three-part framework of presidential power laid out by Justice Jackson in Youngstown Sheet and Tube Co. v. Sawyer (1952).

• Maximum authority: Acting with Congress’s approval.

• Zone of twilight: Congress is silent or unclear.

• Lowest ebb: Acting against Congress’s will; weakest authority.

Jackson’s concurrence (the famous tripartite test) describes presidential authority relative to Congress:

1. Category 1 — “Maximum authority” (Presidential action with Congressional authorization).
   When the President acts pursuant to an express or implied authorization of Congress, his authority is at its greatest; presidential and congressional power are concurrent and the action is likely lawful.
   
   

2. Category 2 — “Zone of twilight” (Congress silent or ambiguous).
   When Congress has neither authorized nor forbidden the action, presidential authority depends on the circumstances and may be uncertain; power is shared or unclear — courts must look to the imperatives of events and contemporary imponderables.
   
   

3. Category 3 — “Lowest ebb” (Presidential action contrary to Congressional intent).
   When the President acts against the express or implied will of Congress, his power is at its weakest and the action is likely invalid unless the President alone can rely on his constitutional powers (e.g., as Commander-in-Chief), but even then courts will scrutinize closely.
   
   

Jackson’s framework is widely used to assess executive action and separation-of-powers disputes.

Identify and explain the two key legal questions in Hamdi v. Rumsfeld and the decisions the majority reached on each of these questions.

1. Can the U.S. detain a citizen as an enemy combatant? Yes, under the AUMF and war powers.

2. What process is due? Detainees must receive notice and a chance to challenge before a neutral decisionmaker

• Question 1 — May the U.S. government detain a U.S. citizen captured in the course of hostilities and designated an “enemy combatant”?
  Decision: Yes. A majority accepted that the Executive has the authority under the laws of war and the Authorization for Use of Military Force (AUMF) to detain enemy combatants, including citizens, captured in an armed conflict.

• Question 2 — What process is due to a U.S. citizen detained as an enemy combatant?
  Decision: The detainee must be afforded due process: a meaningful opportunity to contest the factual basis for enemy-combatant designation before a neutral decisionmaker (e.g., habeas corpus proceedings or a comparable forum). The Court required procedural protections (notice of the factual basis and a fair hearing), though it allowed flexibility in procedures given the wartime context and practical considerations.

• (Justice O’Connor’s plurality opinion balanced executive detention power with Fifth Amendment due process protections.)

Identify and explain the three key constitutional provisions at the heart of the debate over federalism.  How did Chief Justice Marshall address these in his McCulloch v. Maryland decision?

• Necessary and Proper Clause: Implied powers—creating a national bank is constitutional.

• Supremacy Clause: Federal law overrides state interference.

• Tenth Amendment: Confirms reserved powers but doesn’t restrict implied federal powers.

• Result: Expanded federal authority and supremacy.

Discuss the political, economic, and social changes going on in the United States that contributed to the change from Dual Federalism in the 19^th Century to Cooperative Federalism in the 20^th?

• Industrialization and national markets.

• Progressive and New Deal reforms expanding federal role.

• Great Depression and federal spending programs.

• Urbanization and social change.

• Rising national expectations for federal solutions.

What is Dual Federalism and how is this reflected in the Scott v. Sandford decision?  In other words, what key decisions did the Court make in this case?

• Congress couldn’t ban slavery in territories (narrow federal power).

• African Americans not citizens (states control citizenship).

• Strong property and state rights — federalism’s “separate spheres” view.

How is the laissez-faire economic philosophy reflected in the Hammer v. Dagenhart decision of 1918?

• Struck down child labor law—production seen as local, not interstate commerce.

• Reflected limited government and freedom of contract ideals.

• Showed judicial resistance to federal economic regulation.

In what way does the Court restrict the ability of Congress to justify economic regulation based upon the Commerce Clause in National League of Cities v. Usery? On what bases did the Court reverse itself in Garcia v. SAMTA?

• Usery: Congress can’t regulate essential state functions—protected state sovereignty.

• Garcia: Overturned Usery—federalism protected by political, not judicial, safeguards; defining “traditional” functions was unworkable.

Explain three reasons why the Court struck down the Brady Bill’s provision commanding local law enforcement to do federal background checks in Printz v. U.S.

• Commandeering: Federal government can’t force state officers to enforce federal law.

• Tenth Amendment: Protects state sovereignty.

• History & structure: No tradition supporting such federal coercion.

Why doesn’t the Court rule that the Migratory Bird Treaty Act of 1918 violate the Reserved Powers Clause in State of Mo. v. Holland?

• Treaty power: Congress may enact laws implementing treaties under the Supremacy Clause.

• National interest: Birds cross borders—national concern.

• Balance: Federal treaty power overrides state law when properly exercised.

Explain the basis for the Court’s ruling that the Massachusetts Burma law violated the National Supremacy Clause in Crosby v. National Foreign Trade Council?

• Conflict preemption: State law interfered with federal sanctions.

• Federal primacy: Foreign affairs belong to federal government.

• Uniformity: States can’t undermine cohesive national foreign policy.