Checks and Balances

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Checks and Balances

• The Imperial Presidency

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Youngstown v. Sawyer (1952)

• Robert H. Jacksons Opinion
• Jackson divided Presidential authority vis a vis
  Congress into three categories, ranked in
  descending order of legitimacy
• (1) those cases in which the President was acting
  with express or implied authority from Congress,
• (2) cases in which Congress had thus far been
  silent, and
• (3) cases in which the President was defying
  congressional orders. He classified this case as
  falling within the third category.

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The Attorney General Gonzales in a speech at
Georgetown University on January 24, 2006 said

• Just a few days after the events of September
  11th, Congress enacted a joint resolution to
  support and authorize a military response to the
  attacks on American soil. In this resolution, the
  Authorization for Use of Military Force, Congress
  did two important things. First, it expressly
  recognized the Presidents authority under the
  Constitution to take action to deter and prevent
  acts of international terrorism against the
  United States. Second, it supplemented that
  authority by authorizing the President to, quote,
  use all necessary and appropriate force against
  those nations, organizations, or persons he
  determines planned, authorized, committed, or
  aided the terrorist attacks in order to prevent
  further attacks on the United States.
• NPR Key Figure in Wiretapping Suit Goes Public

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Limiting the Bush Administrations War On Terror

• Detainee Treatment Act of 2005
• The amendment was added to the Defense
  Appropriations Act of 2006 by Senator John
  McCain.
• The amendment prohibits inhumane treatment of
  prisoners, including prisoners at Guantanamo Bay,
  by confining interrogations to the techniques in
  Army Field Manual.
• President Bushs Response "The executive branch
  shall construe Title X in Division A of the Act,
  relating to detainees, in a manner consistent
  with the constitutional authority of the
  President to supervise the unitary executive
  branch and as Commander in Chief and consistent
  with the constitutional limitations on the
  judicial power, which will assist in achieving
  the shared objective of the Congress and the
  President, evidenced in Title X, of protecting
  the American people from further terrorist
  attacks. (Signing Statement)
• NPR Scalia Enters Debate on Constitution and
  Torture

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Reining in the Bush Administrations War On Terror

• Enemy Combatants
• Hamdi v. Rumsfeld (2006) Hamdan v. Rumsfeld
  (2006)
• Precedents that reined in the Imperial
  Presidency
• Ex Parte Milligan (1866) Ex Parte Merryman
  (1866)
• Ex Parte Quirin (1942)
• Youngstown v. Sawyer (1952)
• We have long made it clear that a state of war
  is not a blank check for the President when it
  comes to the rights of the Nations citizens.
  Justice O Connor, Hamdi
• Meet the JAG Lawyer Who Prompted Bush's Detainee
  Bill

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War Powers Act of 1973

• Rein in the Imperial Presidency
• A response to the way LBJ escalated the war in
  Vietnam.
• An attempt to limit the power the Gulf of Tonkin
  Resolution had given the president.

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