Executive Power and Privilege

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Executive Power and Privilege
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Four Textual Dimensions of the President

• Text II(1)(1) The executive Power shall be
  vested in a President (overarching scope)
• II(2)(1) shall be CIC, etc. (role)
• II(2)(2), (3) shall have Power (authority)
• II(3) shall do (activities)

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The Key Case Youngstown

• Truman, Korea and the steel mills
• A rush to judgment?
• The variety of voices . . .

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Truman v. Whom?
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Whats NOT Executive Power? (Why Did Truman
Overreach?)

• Black in Youngstown President should not
  legislate (formalist position)
• Douglas President should not encroach on either
  Congressional turf or individual rights
  (structuralist approach)
• Jackson President was aggrandizing here he
  should just play nicely with the other branches
  (functionalist) (NOTE POWER ZONE THEORY)
• Frankfurter its being difficult in the sense of
  offending past practice, custom, precedent
  (historicist, traditionalist)
• But see Vinson et al. Executive power is large
  on such matters compared with the judiciarys
  (judicial restraint)

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Present Applicability

• Is the NSAs wiretapping lawful?
• See the Administrations defense
  http//www.epic.org/privacy/terrorism/fisa/doj1190
  6wp.pdf
• Which is the more applicable authority indicating
  the congressional view, the general authorization
  of a reaction to terrorism or the more specific
  amendment of the wiretapping procedural laws?

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Privilege

• A particular and peculiar benefit or advantage
  enjoyed by a person . . . beyond the common
  advantages of other citizens . . . A right,
  power, franchise, or immunity held by a person or
  class, against or beyond the course of law.
• What privileges does the U.S. President enjoy,
  and should be entitled to?

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Watergate and U.S. v. Nixon
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U.S. v. Nixon, 1973

• Was deciding this privilege claim the same sort
  of saying what the law is job that the Court
  took up in Marbury (as Court claims)? Or
  something a bit different? Court as interpreter
  Court as arbiter
• When might a privilege claim ever succeed?
  Consider the opinions dicta
• Application in this case . . .

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Four Factors in Weighing Privilege

• 1. identity of inquirer(s) (citizen, Congress,
  judiciary, state(s), or what combo thereof?),
• 2. identity of target of inquiry (how far
  removed from President?),
• 3. subject matter of inquiry (see U.S. v. Nixon
  list national security, for example, versus
  personal business?),
• 4. reason for inquiry (just politics, civil,
  criminal?).

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A Contemporary Application of Executive Privilege
Doctrine

• In the Cheney case (Cheney v. U.S. District
  Court, 2004), the VP asserted a right not to
  disclose energy advisory groups discussions with
  him to Sierra Club, Judicial Watch, in extrinsic
  civil litigation
• Denied writ of mandamus absent a finding of
  exceptional circumstances and a finding of no
  judicial usurpation of power not yet shown in
  this case

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Recusal?

• Aside a possible exercise of judicial
  self-restraint (here, recusal) in the situation
  involving Scalia hunting with Cheney during the
  briefing of Cheneys S. Ct. case?

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Increasing Presidential Power Clinton v. NYC

• The Line Item Veto and I(7)(2) did it violate
  the Presentment Clause or not?
• An alternative ground SOP disrupted?
• Kennedy Individual Rights at stake
• Aside Why no standing in Raines? And why was
  standing okay here?

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Non-Delegation and its Demise An Answer to the
Bureaucratic State?

• Schechter, 1935, and Panama Refining, 1935
  (introducing the notion of the non-delegation
  doctrine while striking elements of the NIRA)
• Mistretta (upholding sentencing guidelines), 1989
• Whitman v. American Trucking, 2001 (unanimously
  rejecting the non-delegation)
• Most recently, 2005 some independent restraint
  on the sentencing guidelines from a 6th amendment
  right-to-jury-trial perspective

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Chadhas Approach to Immigration Decision-Making
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Chadha and the Demise of the Legislative Veto,
1983

• Context radical growth in presidential power
  since 1937 see New Deal, strong president, heavy
  delegations of authority to the president
• Legislative veto devised as a device for
  Congress to maintain some control
• But struck down why? Consider formalism,
  structuralism and concern that governmental
  scale itself may be anti-republican
• White offers plausible practice-based and
  functionalist rejoinder

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The Independent Counsel Morrison v. Olson, 1988

• Is the Independent Counsel an inferior or
  principal officer and so what?
• Is the judiciary being asked to step outside its
  Article III role?
• Does this scheme undermine the Executive branch,
  violating the rough balance in the SOP?

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J. Scalias Dissent

• the concept of a government of separate and
  coordinate powers no longer has meaning
• In what other sense can one identify the
  executive Power . . . except by reference to
  what has always and everywhere . . . been
  conducted never by the legislature, never by the
  courts, and always by the executive
• utter incompatibility of the Courts approach
  with our constitutional traditions (?)

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J. Scalia Vivid and Caustic

• B. N.J. 1936
• Immigrant Catholic family
• Harvard Law 1960
• Taught UVA Law from 67
• Served Nixon and Ford
• Appointed by Reagan 86
• Most impressive in Morrison, Mistretta
• 2006 one would have to be an idiot to believe
  constitutional relevance depends on interpreting
  it as a living document

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Some other executive powers

• Appointment (principal officers, inferior
  officers, non-officers policymaking,
  independence, tenure)
• Removal (Myers, Humphreys Executor, , Wiener,
  Bowsher, Morrison) president can fire, but
  Congress can to some extent limit presidential
  removal in cases of desirable independence of the
  official
• Executive Orders e.g., the Emancipation
  Proclamation

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The Presidents Powers in Foreign Affairs

• Curtiss-Wright, 1936 strong statement of
  executive power
• Dames Moore, 1981 Youngstown revisited with a
  different practical result, while using Jacksons
  zone approach
• War and the Concurrent Authority with Congress
  (considering the War Powers Resolution) why
  unconstitutional?

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Recent restraints on Executive Power Even in
Wartime

• Rasul v. Bush (2004) aliens detained in
  Guantanamo have right to statutory habeas review
• Padilla v. Rumsfeld (2004) though an American
  citizen could be detained abroad as an enemy
  combatant, citizen entitled to meaningful factual
  hearing
• Hamdi v. Rumsfeld (2004) procedural avoidance of
  questions involving habeas claims of American
  citizen held in U.S. as an enemy combatant

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Hamdi and Rumsfeld
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Hamdis Voices

• OConnors plurality functionalism Congress
  has authorized it in the AUMF of 2001 over the
  1971 repeal of the Emergency Detention Act of
  1950, plus precedent of Quirin, Milligan and
  Mathews v. Eldridge
• Souter and Ginsberg functionalism read
  differently Congress disagrees
• Scalia, Stevens structuralism, SOP rights
• Thomas war trumps rights

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Military Tribunals

• Executive Order of November 13, 2001 To what
  extent is it constitutional? What are its
  constitutional limits?
• Ex Parte Quirin (1942) (upholding military
  commissions in WWII)

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The President as Defendant

• Nixon v. Fitzgerald no presidential civil
  liability for official actions
• Clinton v. Jones presidential civil liability
  and amenability to suit for pre-presidential
  actions
• Breyers (missing) concurrence distortion and
  distraction?
• Can the President be prosecuted criminally?
• The question of unanimity in SOP cases . . .

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Next Up Three Federal Limits on the States

• Preemption
• Dormant Commerce Clause
• IV.2. Privileges and Immunities