Constitutional Law September 29, 2004

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Constitutional LawSeptember 29, 2004

• Separation of Powers
• Legislative and Executive Power
• Foreign Relations
• Curtiss-Wright
• Presidential Powers
• Executive Agreements
• War Powers

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Recap

• Legislative Process
• Bicameralism Presentment
• Representative Deliberative
• Legislative Veto
• Operation and Use
• Invalidated in Chadha
• Formalistic Analysis

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3. Line Item Veto

• General
• Operation
• Purpose (logrolling and riders)
• Incorporation into State Constitutions
• Federal?
• Contract w/ America
• Line Item Veto Act
• Expansion of Presidential Power

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c. Clinton v. New York

• Cancellation Pursuant to Standards
• Effect of Amendment by Repeal
• Violates Article I
• No Presidential Amendment/Repeal
• Not within Veto Power
• Discussion
• Is this repeal or execution?
• Could Congress rewrite the statute?

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General Points

• Legislative and Executive Power
• Control of Administrative State
• Congress Legislation and Rule of Law
• President Oversight
• Conflict vs. Cooperation
• Removal Legislative Veto
• Delegation Line Item Veto
• Formalism vs. Functionalism
• Special Role of Foreign Relations

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E. Foreign Relations1. Curtiss-Wright

• Rejected ND Challenge
• Presidential Arms Embargo
• Distinguished Schechter Poultry
• Source of Foreign Affairs Powers
• Conferred by International Law
• Dominant National Interest
• Independent Presidential Power
• Sole Representative
• Rationales Speed, Secrecy, Expertise

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2. Presidential Powers

• Symbolic Role
• Diplomacy
• Appoint/receive ambassadors
• Power to recognize governments
• Agreements
• Treaties w/ 2/3 Senate Concurrence
• Other Agreements Art. I, 10 (link)
• Commander in Chief

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3. Executive Agreements

• Belmont/Pink (Litvinov Assignment)
• Incident to recognition
• Implied congressional authorization
• Dames Moore (Iranian Hostage Deal)
• Implicit congressional approval
• Practice as gloss on presidential power
• Garamendi (Holocaust Insurance)
• Scope of power to make agreements (link)
• Preemptive effect

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4. War Powers

• Constitutional Division
• Congress Declare War
• President C in C
• Presidential Use of Force
• Repel Invasion
• Suppress Insurrection (Prize Cases)
• Protect citizens and interests
• Armed actions short of war
• Other Congressional Approval

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d. War Powers Resolution

• Context
• Provisions
• President Reports
• 60/90 Removal
• If Hostilities Imminent
• Unless Congress Approves
• Legislative Veto (concurrent resolution)
• Professes not to authorize use of force
• Ineffective

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e. Incidental C in C Powers

• The Laws of War
• Field Command (Steel Seizure)
• Enemy Combatants
• Spies and Saboteurs
• Military tribunals (Quirin)
• Independent Presidential Authority?
• Suspension of Rights?
• Hamdi, et al.

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Legislative/Executive Power
Foreign Affairs
Domestic
Constitutional Authority
War Commerce Consent
Congress
C in C Receive Treaty
Makes Law
Empower Set Standards Procedures
Congress
President
President
Command Represent
Appoint Control Remove
Takes Care
Officers
Officers
Implement
Enforce Administer
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Art. II, 10
cl. 1 No state shall enter into any Treaty,
Alliance, or Confederation . . . cl. 3
No state shall, without the Consent of Congress .
. . Enter into any Agreement or Compact with
another State, or with a foreign Power, . . .
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The Litvinov Assignment Before
USA
USSR
Nationalized Soviet Assets Held In US
Nationalized Assets of US Citizens
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The Litvinov Assignment After
USA
USSR
Pay US Citizens with Claims on Assets In USSR
Keep
Nationalized Soviet Assets Held In US
Nationalized Assets of US Citizens
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At a more specific level, our cases have
recognized that the President has authority to
make "executive agreements" with other countries,
requiring no ratification by the Senate or
approval by Congress, this power having been
exercised since the early years of the Republic.
See Dames Moore Pink Belmont . . . . Making
executive agreements to settle claims of American
nationals against foreign governments is a
particularly longstanding practice, the first
example being as early as 1799, when the
Washington administration settled demands against
the Dutch Government by American citizens who
lost their cargo when Dutch privateers overtook
the schooner Wilmington Packet. . . . Given the
fact that the practice goes back over 200 years
to the first Presidential administration, and has
received congressional acquiescence throughout
its history, the conclusion "that the
President's control of foreign relations includes
the settlement of claims is indisputable." Pink,
supra, at 240 (Frankfurter, J., concurring.
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