Con Law Exam 2

What is "the executive power" and where is it located? - answer-- Located in Article 2 - Majority of what he does is undefined. - Framers intended to leave it open because they intended on George Washington being President because he knew what to do. Why was the 1796 election important and who won? - answer-- Marked the 1st time in history that power passed from one ruling administration to another without force of arms. - John Adams was elected. What was the 1798 Sedition Act and how was it received? - answer-- Sedition act made it a crime, punishable by fine or imprisonment, to bring "false, scandalous, and malicious" accusations against the president, Congress, or the government. - Resolutions were passed by Jefferson and Madison that attacked it. They denounced the Sedition Act in part because it threatened freedom of expression. - Widely denounced as unconstitutional and the act expired and congress made no attempt to extend it, and those sentenced were later pardoned by Jefferson. How did election of 1800 lead to the 12th Amendment? - answer-- The deadlock of the election between Jefferson and Burr for 73 votes lead to the passage of the 12th amendment. What is a "butterfly ballot" and in which case was it important? - answer-- The butterfly ballot used in the Palm Beach County, Florida U.S. presidential election, 2000 (a ballot paper that has names down both sides, with a single column of punch holes in the center, which has been likened to a maze) led to widespread allegations of mismarked ballots. -Bush v. Gore Bush v. Gore - What was the Court's concern with the recounts? - answer-- no evidence that a manual recount of overvotes would identify additional legal votes. - The majority's other concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the "clear intent of the voter," but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, "undervotes" should count) - If a recount is done it must be done at all the counties. What prompted the 25th Amendment and what issues did it address? - answer-- Assassination of Kennedy and the age of the next in line. - Was in response to vacancy in the office of Vice President AND advanced age of those next in line of succession. - Allows for presidential disability: president can declare that he is unable to discharge the powers and duties of the office; VP is acting president until disability is removed. - Vice President and a majority of the Cabinet declares the president is unable to discharge the powers and duties of the office; VP becomes the acting president and president restored within 21 days unless declared disabled by 2/3 of both house and senate. - Provides for filling a vacancy in the office of VP confirmed by majority vote Models of Presidential power? - answer-- Constitutional model: Taft model; can only do what is written in the constitution and is limited - Stewardship model: Teddy Roosevelt model; unless prohibited by constitution you can do it. Expansive/Activist - Prerogative model: Lincoln model; most expansive model. To act according to the discretion of the public good without the prescription of the law. Aaron Wildavsky's 2 Presidencies - answer-- Presidents are more likely to be successful in foreign affairs but have a harder time in domestic affairs because they have more control in foreign affairs. What are the limits on the Stewardship Model of Presidential power? - answer-- Unless specifically prohibited by the Constitution or federal law - President must enforce all laws and cannot pick and choose what to enforce. Youngstown - What was wrong with Truman's action? - answer-- We were engaged in a war in Korea and steel was needed in the production of arms and other military equipment. Truman didn't want a strike to shut down the mills so he ordered the Secretary of Commerce to seize the nation's steel mills and keep them in operation. Ordered mill owners to continue to run their facilities as operators for the US. - There was no statutory authority for his action. - President cannot act against the will of congress. What is a line-item veto? Case? - answer-- Case: Clinton v City of New York (1998) - The line-item veto, or partial veto, is a special form of veto that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill. What was the issue in Myers v US? - What types of executive personnel can be fired by the President? - answer-Issue: Does the best evidence rule require official transcripts to be the only source of evidence as to what a person said during a trial or hearing? - Myers v. United States, 272 U.S. 52 (1926), was a United States Supreme Court decision ruling that the President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. - Except where statutorily limited, the President may remove any executive branch officer. The power of the President to remove Members of the Cabinet cannot be limited by Congress, because independence from the President is not desirable for those posts. - Serve at his convenience What is the difference between executive privilege and executive immunity? - What cases correlate with it? - answer-- Executive privilege case: US v. Richard Nixon - Presidential immunity case: Mississippi v. Johnson, Nixon v. Fitzgerald, Clinton v. Jones Executive privilege: the privilege, claimed by the president for the executive branch of the US government, of withholding information in the public interest. Presidential immunity: President cannot be sued for enforcing the laws because you don't like it. What are the president's quasi-judicial powers? -What cases correlate with it? - answer-- Power to pardon - Pardon Cases: Ex parte Grossman (In 1920, legal action was taken against Philip Grossman for selling liquor at his place of business in violation of the National Prohibition Act. He violated a federal court injunction by continuing to sell alcoholic beverages. In 1923, President Calvin Coolidge issued a pardon that reduced Grossman's sentence to payment of fine.) Murphy v. Ford (In Murphy v. Ford (1975), a Federal District Court in Michigan rejected a suit for a declaratory judgment that President Ford's unconditional pardon of Richard M. Nixon was unconstitutional. The court found that the President had the constitutional power to grant a pre-indictment pardon, citing Ex parte Garland in its support.) - Ability to commute sentences What are the president's resources to manage foreign affairs? - answer-- crises boost Pres. public support - info advantage over congress (CIA, Nat. Sec. Council, NSA, Nat. Reconnaissance Office) - powers as commander-in-chief What were the only congressionally declared wars? - answer-- WWI & WWII - Spanish-American war - War of 1812 - Mexican-American War What was the War Powers Act and the history behind it? - answer-- War Powers Act: Congress' response to escalation of US military commitment in Vietnam without formal declaration of war. - Senate Subcommittee on US Security Agreements and Commitments Abroad held hearings to discuss allegations concerning Johnson's handling of the Vietnam War. - Nixon invaded neutral Cambodia - With increase in US casualties, members of Congress began questioning US involvement - Fulbright Commission convened to investigate. - Johnson relied on Tonkin resolution as justification for expansion of war What is the difference between formalism and functionalism? - answer-- Formalism: The constitution creates clear boundaries between and among branches by giving such a primary power. No deviation from this unless permitted by constitution. - Functionalism: Rejects strict divisions. More fluid system. Separate branches of sharing powers. What the constitution prevents is tyranny of one branch over the other. What is the "non delegation doctrine"? - answer-- A power once delegated cannot be redelegated. The constitution delegates to congress all legislative powers. Congress cannot give such powers to another body. - Constitution delegates powers to each branch very specifically. Since constitution delegates legislative power to Congress, Congress cannot redelegate to the President even though it does through the creation of agencies through the Executive. Are there rules to what legislative powers Congress can delegate? Cases? - answer-- Wayman v. Southard (1825): Rules vary based on importance of the subject - Hampton & Co. v. US (1928): CJ. Taft's "intelligent principle" approach - New Deal - NIRA: Panama Refining Co v. Ryan (1935); Schechter Poultry v. US (1935) What was the "sick chicken" case? - answer-- Schechter Poultry Corp v. U.S. - During the depression/new deal era, Congress decided to allow President to pass rules for industry in areas that didn't already have rules. Live poultry rule, what to do with sick chickens that we raise to consume? Legislative Veto - answer-- Executive makes a policy. - Congress can veto by a vote in one chamber, both chambers or by committee. - War Powers Resolution is an example. Prize Cases - answer-- arose from Civil war - Prizes of War Ex parte Milligan - answer-- arose from Civil war - Lincoln issued orders expanding military control over civilian areas, permitted military arrests and trials of civilians, and suspended habeas corpus. Ex