Separation of Powers - I

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• Separation of Powers - I
• April 7, 2006

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Introduction to Separation of Powers

• 3 co-equal branches of government
• Art. I Congress Makes Law
• Art. II Exec. - Executes (administers) the law
• Art. III Judicial - Interprets and applies the
  law
• Why this separation?
• Enhances liberty
• Checks and balances
• Stability in government

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Theoretical Historical Origins

• Marchamont Nedham, Excellencie of a Free-State
  (1656)
• An Errour in Policy hath been this, permitting of
  the Legis-lative and Executive Powers of a State,
  to rest in one and the same hands and persons. By
  the Legislative Power, we mean the Power of
  making, altering, or repealing Laws.
• The Reason is evident because if the Law-makers
  should be also the constant Administrators and
  Dispencers of Law and Justice, then (by
  consequence) the People would be left without
  Remedy, in case of Injustice.

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Theoretical Historical Origins

• John Locke, Second Treatise of Govt (1689)
• The Legislative Power is that which has a right
  to direct how the Force of the Commonwealth shall
  be imploy'd for preserving the Community and the
  Members of it but the same Persons who have the
  Power of making Laws, should not have also in
  their hands the power to exe-cute them, whereby
  they may exempt them-selves from Obedience to the
  Laws they make

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Theoretical Historical Origins

• Charles Louis de Secondat, Baron de la Brede et
  de Montesquieu, Spirit of the Laws (1748)
• "there can be no liberty where the legislative
  and executive powers are united in the same
  person, or body of magistrates," or "if the power
  of judging be not separated from the legislative
  and executive powers"

Check out http//www.separationofpowers.net/
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Influencing the Constitution

• John Adams, Thoughts on Govt (1776)
• A representation of the people in one assembly
  being obtained, a question arises whether all the
  powers of government, legislative, executive, and
  judicial, shall be left in this body? I think a
  people cannot be long free, nor ever happy, whose
  government is in one Assembly.
• Madison, Records of the Federal Convention (1840)
• The Legislative, Executive, Judiciary
  departments ought to be made as independt. as
  possible One source of stability is the double
  branch of the Legislature. The division of the
  Country into distinct States formed the other
  principal source of stability.

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Influencing the Constitution

• Madison, Federalist 47 (1788)
• No political truth is certainly of greater
  intrinsic value or is stamped with the authority
  of more enlightened patrons of liberty than this
  the accumulation of all powers legislative,
  executive and judiciary in the same hands,
  whether of one, a few or many, and whether
  hereditary, self appointed, or elective, may
  justly be pronounced the very definition of
  tyranny.

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Themes in SoP

• Incomplete separation
• The constitution is full of instances where a
  power is shared between 2 branches
• Encroachment
• A power constitutionally assigned to one branch
  alone may not be exercised by another
• Interference
• One branch may not obstruct another in the
  performance of its constitutional powers
• Formalism
• Form must be observed, esp. by Congress

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SoP Matrix
What Branch Acting
What Function Performed
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Art. II Executive Power

• Sources of Executive Power
• Art. II
• 1, 1 The executive Power shall be vested in
  a President of the United States of America.
• 2, 1 The President shall be Commander in
  Chief .. have Power to grant Reprieves Pardons
  ..
• 2, 2 make treaties and appointments
• 2, 3 Power to fill up all Vacancies
• 2, 4 recommend laws to Congress receive
  ambassadors, and shall take Care that the Laws
  be faithfully executed.

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Art. II Executive Power

• Sources of Executive Power
• Art. II
• 1, 1 The executive Power shall be vested in
  a President of the United States of America.
• 2, 1 The President shall be Commander in
  Chief .. have Power to grant Reprieves Pardons
  ..
• 2, 2 make treaties and appointments
• 2, 3 Power to fill up all Vacancies
• 2, 4 recommend laws to Congress receive
  ambassadors, and shall take Care that the Laws
  be faithfully executed.

The Presidents national security diplomatic
powers (head of state)
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Art. II Executive Power

• Sources of Executive Power
• Art. II
• 1, 1 The executive Power shall be vested in
  a President of the United States of America.
• 2, 1 The President shall be Commander in
  Chief .. have Power to grant Reprieves Pardons
  ..
• 2, 2 make treaties and appointments
• 2, 3 Power to fill up all Vacancies
• 2, 4 recommend laws to Congress receive
  ambassadors, and shall take Care that the Laws
  be faithfully executed.

Law-making power see also Art. I, 7, 2
(presentment)
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Art. II Executive Power

• Sources of Executive Power
• Art. II
• 1, 1 The executive Power shall be vested in
  a President of the United States of America.
• 2, 1 The President shall be Commander in
  Chief .. have Power to grant Reprieves Pardons
  ..
• 2, 2 make treaties and appointments
• 2, 3 Power to fill up all Vacancies
• 2, 4 recommend laws to Congress receive
  ambassadors, and shall take Care that the Laws
  be faithfully executed.

Depends upon legislation there-fore congress
nominally controls it
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Art. II Executive Power

• Sources of Executive Power
• Core Art. II powers
• Delegated power (i.e., legislation needing
  implementation)
• Inherent power?
• What if the constitution omits something
  important, like protecting the US from immin- ent
  invasion or insurrection?
• open-ended nature of Art. IIs grant of
  executive power
• power flowing from our status as a sovereign
  nation

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Steel Seizure Case - Timeline

• June 28, 1950 Korean War starts
• June 30 US enters the war
• 1952 Truman imposes wage price controls,
  leading to labor unrest
• April 4 Steelworkers Union announces strike for
  April 9
• April 8 Truman issues Executive Order 10340 and
  addresses nation

Y
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Steel Seizure Case - Timeline

• Between April 17, 1945, and August 27, 1946,
  Truman had seized 28 other industrial
  propertiessometimes entire industries, such as
  the railroads and the meat packersin labor
  disputes.
• Because he opposed the Taft-Hartley Act, which
  Congress had passed it over his veto in 1947. He
  did not ask Congress to authorize his seizure of
  the steel industry.

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EXECUTIVE ORDER 10340

• WHEREAS American fighting men and fighting men of
  other nations of the United Nations are now
  engaged in deadly combat with the forces of
  aggression in Korea
• WHEREAS steel is indispensable to the war
  effort
• WHEREAS a work stoppage would immediately
  jeopardize and imperil our national defense
• NOW, THEREFORE, by virtue of the authority vested
  in me by the Constitution and laws of the United
  States, and as President of the United States and
  Commander in Chief of the armed forces of the
  United States, it is hereby ordered as follows
• 1. The Secretary of Commerce shall take
  possession of the plants, facilities, and other
  property of the companies named in the list
  attached hereto, or any part thereof, as he may
  deem necessary in the interests of national
  defense and to operate or to arrange for the
  operation thereof and to do all things necessary
  for, or incidental to, such operation.
• HARRY S. TRUMAN, THE WHITE HOUSE, April 8th, 1952

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Youngstown Steel v. Sawyer (1952)

• What power does Truman exercise here?
• Executive power?
• take care that the laws be faithfully executed
• What law is the President executing?
• No statute authorizing seizure in strike
  situation
• Congress rejected this in Taft-Hartley Act (1947)
• But authorized courts to issue temporary
  injunctions
• Commander-in-chief?
• Broad interpretation anything related to
  military
• Narrow interpretation theater of war operations
• Example Lincolns emancipation proclamation
• Domestic actions and foreign wars?
• What limits during an era of permanent war?

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Youngstown Steel v. Sawyer (1952)

• What power does Truman exercise here?
• Inherent? Extra-constitutional powers?
• Federal govt enjoys power of national
  sovereignty (incl. defense) whether included in
  const. or not.
• Difference between federalism and SoP
• Attributes of national sovereignty defaults to US
• no SoP default rules
• National defense
• Teddy Roosevelt "The president is steward of the
  people. It was not only his right but his duty
  to do anything that the needs of the Nation
  demanded unless such action was forbidden by the
  const. or by the law.

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Youngstown Steel v. Sawyer (1952)

• Closer examination of war power
• Congress has power to declare war (Art I, 8, 9)
• i.e., the power to make policy
• As C-I-C, President is first general

• i.e., the power to execute congress war policy
  and to direct war operations themselves
• Was Korean War a declared war?
• Would it matter if it were?

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Justice Blacks Strict Approach

• Unless Trumans action is found within his
  Article II powers, it is unconstitutional
• Executive Power
• this is not equivalent to Kings royal
  prerogative
• not an independent grant of power
• Take Care
• there must first be a law passed by congress
• the seizure was itself legislative in character
  as can be seen by its preamble, setting forth
  policy
• also, seizure commits US to payment of
  compensation
• C-I-C
• domestic effects not within C-I-C powers

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Douglas' Cautionary Approach

• Emergency does not create power it only provides
  an occasion for use of power
• SoP adopted not to promote efficiency, but to use
  the inevitable friction to safeguard liberty
• Seizure by President ties Congress's hand on
  implementation of policy
• Commits the US to payment of compensation

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Frankfurters Flexible Approach

• Const provides framework, not a rigid code
• 3 branches are interacting, not disjointed
• Dynamic interpretation of the constitution
• Const. law is not "confined to the words of the
  Const., disregarding the gloss which life has
  written upon them."
• Power may accrete from congress to president over
  time as former acquiesces in unilateral action
• almost a common law version of the constitution
• but can be overridden by specific congressional
  action reclaiming its delegated authority
• which is what happened in this case because
  congress had specifically denied Truman authority
  to seize factories
• Vinson dissent sees no specific prohibition on
  Pres. Action
• Assent seen from cong'l appropriations.

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Jacksons Structured Approach

• SoP is misnomer branches act in concert
• separateness, but interdependence
• autonomy, but reciprocity
• Interaction between Congress President

• Congress authorizes, triggering executive power
• President possesses all his own powers, plus
• Any power congress has validly delegated to him
• Congress remains silent
• President possesses express implied powers
• those stated in 2 plus those he shares with
  congress
• Congress rejects presidential power
• Pres has only Art II power, minus shared powers
• those that congress may not take away from him

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Jacksons 3-Zone test endures

• Zone 1 Approval
• President acts w/ congressional authority
• Presidential action is invalid only if federal
  govt as a whole lacks power in this area
  (federalism)
• Zone 2 Silence (twilight zone)
• Congress neither approves nor disapproves
• Balance need for unilateral presidential action
  against damage to const'l rights and structure
• other imperatives and imponderables of events
• Zone 3 Disapproval
• President acts despite congress disapproval
• Valid only if w/in Art. II (or approved inherent
  power)

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Jackson's eloquy on SoP

• "With all its defects, delays and inconveniences,
  men have discovered no technique for long
  preserving free government except that the
  Executive be under the law, and that the law be
  made by parliamentary deliberations."

Robert Jackson was chosen by President Harry S
Truman in 1945 to be the Chief Prosecutor for the
United States at Nuremburg
What ever happened to Youngstown Sheet Tube
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SoP Foreign Affairs

• Presidential Power
• Constitutional Text
• Art. II, 2 The president shall be commander
  in chief of the army and navy of the United
  States, and of the militia of the several
  States
• He shall have power, by and with the advice and
  consent of the senate, to make treaties and he
  shall nominate, with the advice and consent of
  the senate, shall appoint ambassadors, other
  public ministers and consuls
• Art. II, 3 he shall receive ambassadors and
  other public ministers
• He shall take care that the laws be faithfully
  executed
• When congress authorizes, President acts within
  Zone 1

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SoP Foreign Affairs

• Presidential Power
• Inherent (unstated) Power
• Head of State
• US v. Curtiss-Wright The President is the sole
  organ of the nation in its external relations,
  and its sole representative with foreign nations.

• Does either Art. II or the Presidents inherent
  power mean that different SoP rules apply when
  it comes to war or foreign affairs?
• Can Congress restrict the Presidents conduct of
  either?

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Dames Moore v. Regan (1981)

• Iran-US Claims Tribunal
• Established by Executive Agreement
• Terminates all cases (public private claims) v.
  Iran
• Authority
• Core Art. II power ?
• Inherent power?
• Intl Claims Settlement Act ?
• Close, but not on-point
• Congressional acquiescence
• Zone 1a

Headquarters of IUSCT The Hague
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The Prize Cases (1863)

• Who has power to make war?
• Art. I, 2, 1 The Congress shall have power
  to declare War
• Art. II, 2, 1 The President shall be
  Commander in Chief
• Is the Pres power shared, or unilateral?

• Difference between initiating/declaring war and
• repelling invasion and suppressing insurrection

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Inherent Power to defend US

• Can President make war?
• Objections at constl convention
• Elbridge Gerry "never expected to hear in a
  republic a motion to empower the Executive alone
  to declare war."

• George Mason was agst giving the power of war
  to the Exec-utive because not safely to be
  trusted with it or to the Senate, because not so
  constructed as to be entitled to it. He was for
  clogging rather than facilitating war, but for
  facilitating peace

• Roger Sherman the Executive shd. be able to
  repel and not to commence war

• Is this understanding reflected in difference
  between
• Presidents power as Commander-in-Chief Art. II,
  2
• Congress power to declare war Art. I, 8, 11

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Extent of presidential war power

• How broad is Pres defensive war power?
• Since all American wars are defensive
• Can the President always act without cong.
  approval
• Can Bush invade Iran as a defensive measure?
• Can he order domestic spying?
• Can the Pres inherent power to defend the US be
  circumscribed by Congress?

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Un/Declared Wars

• Formal Declarations

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Un/Declared Wars

• No Declaration of War
• 1950-53 Korea
• 1962 Cuba
• 1964 Vietnam
• 1965 Domican Republic
• 1970 Cambodia
• 1980 Iran
• 1981 El Salvadaor
• 1981 Libya

• 1982 Lebanon
• 1983 Grenada
• 1987 Persian Gulf
• 1988 Panama
• 1991 Iraq
• 1992 Somalia
• 1993 Bosnia
• 2003 Iraq

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Un/Declared Wars

• Gulf of Tonkin Resolution
• Aug 4, 1964 Pres. Johnson reports to Congress
• N.Vietnamese patrol boats made an unprovoked
  attack on the destroyer USS Maddox in intl
  waters, claimed "unequivocal proof" of an
  "unprovoked" second attack against the Maddox
• Aug. 7, 1964 Congress passes H.J.Res 1145
• "to take all necessary steps, including the use
  of armed force, to assist any member or protocol
  state of the Southeast Asia Collective Defense
  Treaty requesting assistance"
• Vote in House 416-0 in Senate 88-2
• Squadron commander James Stockdale, flying
  overhead
• "I had the best seat in the house to watch that
  event our destroy-ers were just shooting at
  phantom targets -- there were no PT boats
  there.... nothing there but black water and
  American fire power."
• Johnson later said in private
• "for all I know, our Navy was shooting at whales
  out there."

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Justiciability in times of war

• Mora v. McNamara (1967)
• Are these questions justiciable?
• I. Is US military activity in Vietnam a 'war'
  within the meaning of Article I, Section 8,
  Clause 11 of the Constitution?
• II. May the President draft for that military
  activity, when no war has been declared by
  Congress?
• III. Do treaty obligations of the US
  enlarge/restrict pres. power?
• IVa. Do US military operations fall within the
  terms of the joint Congressional ('Tonkin Bay')
  Resolution of August 10, 1964?
• IVb. If the Resolution purports to give the Pres.
  authority to commit US forces to armed conflict
  limited only by his own absolute discretion, is
  the Resolution a constitutionally impermissible
  delegation of all or part of Congress' power to
  declare war?
• Answer these questions viz the war on terrorism

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War Powers Resolution

• 1541, 1547 Declaration of Policy
• Preserve SoP re. use of armed forces in hostile
  situation
• Presidential action only if
• Declaration of war or specific statutory
  authorization
• National emergency created by attack on US,
  territories, forces
• 1542 Consultation
• President shall consult w/ Cong. before sending
  forces
• 1543 Reporting
• President shall submit report to Speaker of the
  House President pro tempore of the Senate
  within 48 hours
• 1544 Congressional Action
• Termination within 60/90 calendar days, or
• Concurrent resolution requiring withdrawal of
  forces

Constitutional?
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Slide 26
Slide 15
y
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You may, by force of arms, attack, subdue, and
take all Ships and other Vessels whatsoever
carrying Soldiers, Arms, Gunpowder, Ammunition,
Provisions or other contraband Goods, to any of
the British Armies or Ships of War employed
against these Colonies John Hancock, Pres. 2d
Continental Congress
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