Separation of Powers

In addition to allcoating power vertically between the federal government and state government, the Constitution allocates the legislative, executive adn judicial powers horizontally among the 3 branches.

The framers sought to safeguard against tyranny by combating excessive concentration of power. They also intended to promote effiency.

Horizontal separation of powers is divided into Five sections

  1. Examins to what extent the constitutional grant of executive powers authorizes the President to fashion policy in teh absence of congressional authority or contrary to congressional prohibition.

  2. Congress’s constitutional foreign afairs powers including the authority to make war and ratify treaties.

  3. Looks at the political branches power and discretion in times of national security emergency or terror.

  4. Turns to problems concerning the autonomy of each branch vis a vis the others.

  5. Examines the degree to which if at all, the executive and legislative branches are immunie from judicial processes.

Rule of Law

The president of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution.

Facts

In late 1951, steel-mill owners and their employees had disagreements over the terms of collective-bargaining agreements. Unable to reach an agreement, the steel-mill employees’ representative gave notice of intent to strike after the expiration of their current agreement. The federal government unsuccessfully entered the negotiations, and on April 4, 1952, the steel-mill employees’ union gave notice of its intent to strike on April 9, 1952. The importance of steel as a component in weapons and war materials led President Truman to believe that a reduction in steel production from a nationwide strike would jeopardize the nation’s security. The president issued Executive Order 10340 directing Sawyer (defendant), the secretary of commerce, to take control of and continue operating most of the nation’s steel mills. Sawyer carried out the order, and Youngstown Sheet & Tube Co. (plaintiff), along with other steel-mill operators, brought suit in district court alleging that the president’s order amounted to an exercise of lawmaking, a legislative function reserved expressly for Congress. Therefore, the president’s exercise of lawmaking was unconstitutional. The district court granted an injunction in favor of the Youngstown Sheet & Tube Co., on the grounds that the president acted unconstitutionally, but the court of appeals stayed the injunction. The United States Supreme Court granted certiorari.

Issue

May the president of the United States, under his constitutional executive powers, issue a lawmaking order directing the secretary of commerce to take possession of and operate most of the nation’s steel mills?

Holding and Reasoning (Black, J.)

No. The president’s power to issue executive orders must come from either an act of Congress or the Constitution. Congress expressly rejected the use of seizure to solve labor disputes as unconstitutional when it considered the drafting of the Taft-Hartley Act in 1947. Here, the president does not rely on any statutory authority to seize real property. Because Congress has not acted to grant seizure powers to the president in labor disputes, the president’s authority must come from the Constitution. Sawyer admits that there is no express authority in the Constitution that justifies the president’s actions, but argues that the president’s power to do so should still be implied from powers granted to the president in Article II of the Constitution. This argument is not constitutionally supported, because the link between the power to make war decisions and the power to seize private property for the resolution of labor disputes is attenuated. Additionally, the president’s actions cannot be supported by his general executive powers, because the Constitution charges the executive with “faithfully executing the laws,” not making the laws themselves. The decision of the district court is affirmed.

Concurrence (Clark, J.)

This case is controlled by the holding in Little v. Barreme (1804), which held that if Congress has laid down specific procedures to deal with the type of crisis confronting the president, he must follow those procedures in responding to that crisis. However, in the absence of such procedures from Congress, the president’s independent power to act depends on the gravity of the situation confronting the nation. The president’s actions are unconstitutional because Congress already has prescribed procedures for use in this particular situation, and the situation is not so grave as to warrant his acting without a grant of power from Congress.

Concurrence (Frankfurter, J.)

The president has been given powers to seize production, transportation, communication, or storage facilities on 16 separate occasions since 1916. However, the difference between these occurrences and the present case was that, in all prior instances, Congress granted temporary powers to the president to act in times of war or national crisis. Additionally, the powers were only granted for a specific, limited time frame. In the present case, the president was acting to remedy only an industrial problem that was not connected with wartime or a national emergency. Additionally, Congress specifically withheld this type of power from the president, in labor-relations settings, when it passed the Taft-Hartley Act in 1947. The president acted unconstitutionally because the facts surrounding the present case are different from prior instances of presidential grants of power and because Congress could have given the president power but chose instead to withhold it.

Concurrence (Douglas, J.)

Congress is the only branch of government that can appropriate money to pay for a program involving a nationwide seizure of property. Hence, Congress is the only branch that may authorize such actions. It is important to keep this power within Congress to avoid the possibility of a future president abusing the power.

Concurrence (Jackson, J.)

The president and Congress have distinct powers, but the Constitution allows for some overlap of authority in different scenarios. The president may act pursuant to executive powers, congressionally granted powers, or a combination of both. If the president acts under an express or implied grant of power, he can rely on both his own powers and Congress’s. If the president acts without an express grant or denial of Congress’s powers, he acts under the aggregate of his own independent powers. If the president acts in a way that is incompatible with the express or implied will of Congress, he may rely only on the powers expressly granted to him by the Constitution. Because Congress denied power to the president in the present case under the Taft-Hartley Act, the third scenario is implicated. The president may be deemed to have acted constitutionally only if he is acting based on an express grant of power from the Constitution. The Constitution does not grant the president such powers, and the president’s power to “faithfully execute the laws” does not cross into the function of lawmaking. The president is checked by the Fifth Amendment’s prohibition on depriving citizens of life, liberty, or property without due process of law. The president has clearly deprived steel-mill owners of their property without due process.

Concurrence (Burton, J.)

The Constitution vests authority to deal with this type of national emergency in Congress. Congress therefore properly outlined the procedures available to the president to prevent a large-scale strike that could harm the country in the Taft-Hartley Act. Congress chose not to authorize the president to seize an industry, retaining that power for itself. The president decided to use an unauthorized method to deal with the steel-mill labor crisis, but he lacked the inherent power to make the seizure on his own accord. There was no “imminent invasion or threatened attack” here, and thus, there is no need to determine what the president’s constitutional authority would be in that case. The order cannot be justified as a military command either. Ultimately, the president usurped Congress’s authority and violated the separation of powers when he issued the order, and the order is unconstitutional.

Dissent (Vinson, C.J.)

The president acted in a necessary way to prevent a crisis of national defense that could result from a lack of steel production. The Constitution delegates to the president the duty to execute legislative programs. The implementation of a steel-seizure program designed to preserve production and promote the national defense qualifies as a legislative program. The president is uniquely qualified to step in and implement this program, because no other branch of government has the ability to act so quickly by releasing an executive order. The president’s actions are fully within the actions given to the executive branch by the Constitution, because the Framers necessarily made the executive branch a robust one so it could serve as an actual check and balance to the other branches of government. The majority’s decision is improperly aimed at straw men because it seeks to prevent the evils of potential future presidents. This scenario is not at issue. The president is both authorized and uniquely qualified to perform this function.

Rule of Law

Article II of the Constitution grants the US president the exclusive authority to formally recognize a foreign sovereign through executive power that Congress may not contradict via statute.

Facts

Menachem Binyamin Zivotofsky (plaintiff) was born to United States citizens living in Jerusalem. Zivotofsky’s mother requested a passport and report of birth abroad for her son, listing his place of birth as Jerusalem, Israel. The request was denied pursuant to a State Department policy put forth by the US president, which provided that a passport could list only Jerusalem as the place of birth. Zivotofsky filed suit in federal district court against Secretary of State John Kerry (defendant), claiming that § 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, 116 Stat. 1350, permitted citizens born in Jerusalem to list their place of birth as Israel. The district court dismissed the action, reasoning that the action presented a nonjusticiable political question and that Zivotofsky lacked standing. Zivotofsky appealed. The court of appeals affirmed the political-question determination but reversed on the standing issue. The United States Supreme Court granted certiorari to review, vacated the judgment, and remanded the matter to the court of appeals to determine whether Zivotofsky’s interpretation of § 214(d) was correct and whether the statute was constitutional, rather than whether Jerusalem was in fact part of Israel. On remand, the court of appeals held that the statute was unconstitutional, concluding that the president exclusively held the power to recognize a foreign sovereign and that § 214(d) directly contradicted this constitutional authority. The Court again granted certiorari.

Issue

Does Article II of the Constitution grant the US president the exclusive authority to formally recognize a foreign sovereign through executive power that Congress may not contradict via statute?

Holding and Reasoning (Kennedy, J.)

Yes. Article II of the Constitution grants the US president the exclusive authority to formally recognize a foreign sovereign, which is an executive power that Congress may not contradict via statute. A recognition is a formal acknowledgment that a particular entity possesses the qualifications for statehood or that a particular foreign regime is the government of a state. Status as a recognized sovereign confers many benefits. Recognized sovereigns may sue in federal court and benefit from sovereign immunity when they are sued. However, the term “recognition” appears nowhere in the Constitution. In this case, Secretary Kerry argues that the president may exercise this recognition power based on the Reception Clause, Art. II, § 3, which directs that the President “shall receive Ambassadors and other public Ministers.” Pursuant to this authority, Congress has historically deferred to the president in matters such as making treaties with foreign entities, entering into diplomatic relations with a foreign sovereign, and sending ambassadors abroad. The Constitution thus assigns the president the authority to effect recognition on his own initiative. Congress, by contrast, has no similar constitutional power that would enable it to initiate diplomatic relations with a foreign nation. Congress is not without constitutional authority with respect to foreign nations, as Congress may regulate commerce, establish a uniform Rule of Naturalization, and declare war. However, Congress may not contradict the president’s exclusive authority to recognize the legitimacy of foreign states and governments, including their territorial boundaries. Thus, Congress cannot require the president, via § 214(d), to contradict his own statement regarding a determination in an official document issued by the secretary of state. Therefore, Zivotofsky may list only Jerusalem as his place of birth. The judgment of the court of appeals is affirmed.

Dissent (Scalia, J.)

Section 214(d) does not require the secretary of state to make a formal declaration about Israel’s sovereignty over Jerusalem. Making a notation with respect to a citizen’s place of birth in a passport does not encumber the United States with any international obligations. Instead, the statute merely requires passports to list Israel as the place of birth if requested by an individual.

Dissent (Roberts, C.J.)

Section 214(d) does not contradict the president’s recognition authority. Rather, the statute simply gives an American citizen born in Jerusalem the option to designate his or her place of birth as Israel for purposes of a passport.

Rule of Law

The president of the United States has authority to settle judicial claims through an executive order if the settlement of claims is necessary for the resolution of a major foreign-policy dispute with another country and if Congress acquiesces in the president’s action.

Facts

On November 4, 1979, the Iranian hostage crisis began when the American Embassy in Tehran, Iran, was seized. In response, President Carter, acting pursuant to the International Emergency Economic Powers Act, declared a national emergency and issued an executive order that froze all Iranian assets in the United States. Carter’s administration also ordered that lawsuits against Iranian interests in US courts could not proceed without the administration’s approval. The administration granted a license for lawsuits against Iranian interests, which allowed prejudgment attachment of property but not final judgments. Pursuant to that license, Dames & Moore (plaintiff) sued Iran’s Atomic Energy Organization (AEO) for failing to pay Dames & Moore for work it had done on an Iranian nuclear power plant. On January 20, 1981, the American hostages in Iran were released pursuant to an agreement reached between the United States and Iran. The agreement stated that the US government would seek to end all pending litigation against Iran by referring cases to an Iran-United States claims tribunal that was established to facilitate settlements. President Reagan subsequently issued an executive order requiring the transfer of all pending cases to the tribunal and ordering the transfer of Iranian assets to the Federal Reserve Bank to be controlled by the United States Treasury for settlement purposes. After the issuance of the executive order, the district court stayed a final judgment in Dames & Moore’s favor in its action against the AEO. On April 28, 1981, Dames & Moore sued US government officials including the secretary of the treasury (defendants), seeking to prevent enforcement of the president’s executive order and Treasury Department regulations implementing the new agreement with Iran. The district court dismissed the action, and the United States Supreme Court granted Dames & Moore’s petition to review the case.

Issue

Does the president of the United States have the authority to settle judicial claims through an executive order as part of a resolution of a major foreign-policy dispute with another country?

Holding and Reasoning (Rehnquist, J.)

Yes. The United States, along with other countries, has historically exercised its right to settle the claims of its nationals against foreign governments for the purpose of keeping peace with those governments. Although international treaties often accomplish these actions, the president historically used executive orders, without the consent of the Senate, to settle claims. For example, since 1952, the president has entered into at least 10 binding settlement agreements with foreign nations. Congress has implicitly approved this practice through its history of acquiescence and its enactment of the International Claims Settlement Act of 1949 (ICSA). The ICSA provides for a tribunal to handle settlements between United States citizens and the government of Yugoslavia. Congress has frequently amended the ICSA to address particular problems stemming from settlement agreements with other nations, evidencing Congress’s continued approval of the president’s claim-settlement authority. This holding is narrow and does not mean that the president has plenary power to settle all claims. The president has authority to settle such claims if, as here, settlement is necessary to resolve a major foreign-policy dispute and Congress acquiesces in the president’s action. The district court’s judgment is affirmed.

HORIZONTAL SEPARATION OF POWERS: IN CLASS NOTES:

  • The horizontal separation of powers refers to the distribution of government responsibilities among the branches of government: executive, legislative, and judicial.

  • Each branch operates independently to ensure a system of checks and , preventing any single branch from becoming too powerful.

  • U.S. constitution: All legislative Powers herein granted shall be vested in a Congress of the United States.

  • The Executive Power shall be vested in a President of the United States of America. (Herein Granted) is not in Article II of the Constitution.

  • What is teh scope of Executive Branch authority?:

    • To make nation domestice policy? Does a president have more deference in making foreign policy or domestice policy?

    • Youngstown Sheet & Tube v. Sawyer (Steel Seizure Case).

    • In an executive order the president is directing an order to the rest of the executive branch. In an executive order it is designed to direct the rest of the executive branch.

  • Over foreign and military affairs.

    • Zivotofsky v. Kerry: recognition of foreign states.

    • United States v. Belmont: Executive agreements & states

    • Dames & Moore v. Regan: Executive Orders/ EAs

    • Medellin v. Texas: Is the president allowed to issue treaties in respect to the Vienna convention.

      • To what case is a treaty self executing, or when is it non-executing?

  • Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case):

    • Legal Issue: Whether President Truman was acting within his constitutional authority in issuing an order to Secretary of Commerce Sawyer to take possession of and operate most of the U.S. steel mills.

    • Holding: No- Unconstitutional.

    • Reasoning:

      • Executive Power

      • Commander in Chief

      • Take Care Clause

      • Legislative Power

      • Necessary and Proper Clause (Art. I. Sec. 8, Cl. 18).

      • The President’s power if any, to issue the order must stem either from an act of Congress or from the Constitution itself.

      • No constitutional provisions justify the president’s seizure of private property power for lawmakers.

      • Commander in chief does not have power to seize private property to prevent strickes if it is not in teh theatre of war.

    • Frankfurter’s concurring opinion.:

      • The fact taht Congress rejected an amendment in teh Taft-Hartley Act that would have authorized governmental seizure in cases of emergency meant that Congress did not intent to give the President this authority.

    • Justice Jackson Framework: Tripartite Framework. RULE

      • Maximum Power: When the President Acts pursuant to an express or implied authorization of Congress.

      • Mid-Range Power (Twilight Zone): When the President acts in absence of either a congressional grant or denial of authority.

        • How will the court handle this?: They are going to look at the facts of the case.

      • Minimal Power: When the President takes measures incompatible with the express or implied will of Congress.

        • Courts will look at this skeptically, and in cases such as these, the president is only limited to actions that are available under Article II specifically.

      • Dissent: President’s dutires re: war depend on steel, and there had been other seizure that had been made.

      • There was no explicit Congressional prohibition either before or after the seizure. Congress rejected the language that would have given the President that power, BUT there was not an explicit statute prohibiting such a thing.

  • Zivotofsky v. Kerry:

    • Foreign Relations Authorization Act.

    • Sec. 214 “For purposes of the issuance of a passport of a US citizen born in Jerusalem, the Secretary shall upon the request of the citizen of the citizen’s legal guardian, record the place of birth as israel.

    • No president has issued an official statement acknowledging any country’s sovereignty over Jerusalem.

    • Legal Issue: Does the president have the sole authority to recognize foreign states despite legislation to the contrary?

    • Holding: Yes, the power to recognize foreign states resides in teh President along, under the Reception Clause, therefore he does not have to abide by contrary legislation.

    • Reasoning: Presidental power: Recognition of foregin states under power to receive Ambassadors and other public Ministers Need for nation to “speak with one voice”

United States v. Belmont:

  • Holding: Executive agreement is valide of presidental power therefore takes precedence over state legislation.

    Executive authority over foreign and military affiars:

    • Dames and Moore v. Regan

    • Two ends of the “spectrum” of executive power:

    • Express congressional authorization = maximum exec. Power

      • All Article II Powers of the president.

      • All overlapping powers

      • All Article I powers.

  • Middle of Spectrum: Implied congressioanl authority is clsoe to express authority.

    • Implied congressional prohibition is close to express Prohibition.

    • Look for other relevant federal legisalation.

    • History: Has Congress Tacity approved/ disapprved similar actions?

  • Executive authority over foreign and military affairs:

  • Medellin v. Texas:

    • Legal Issue: Whether POTUS has authority to direct state to act.

    • Holding: ?

  • Executive Authority:

    • To make national domestic policy: Youngstown Sheet v. Sawyer

    • 3 tiers of presidential power versus congressional power

    • Presidential seizure= Unconstitutional.

  • Over foreign and military affairs:

    • Zivotofsky v. Kerry: Held that recognition of foreign states= sole purview of president despite conflicting statute.

    • United States v. Belmont: Executive agreements= constitutional and preempt conflicting state policy.

    • Dames & Moore v. Regan: Presidential power versus congressional power rusn along a spectrum.

    • Medellin v. Texas: Presidentail direction of states to act in accordance with non-self-executing treaty = unconstitutional.