Dean’s Fellow Session Week 9 – 3/21 & 3/23
U.S. Constitutional Law I – Professor Schnably
The War Powers Resolution
 Gives POTUS the power to introduce troops where
o 1) There has been a declaration of war
o 2) A specific statutory authorization OR
o 3) A national emergency created by an attack on the U.S.
 Most commentators agree the War Powers resolution has been ineffective in constraining executive
discretion
 Constitutional Issues/Arguments
o Unconstitutional infringement on the powers of the POTUS. The Constitution gives POTUS the
authority to introduce armed forces into hostilities without a congressional declaration of war.
“Repel sudden attack”
 POTUSs have said it is unconstitutional b/c usurps power as commander in chief
 Presidents have taken this action in the past (Youngstown Frankfurter’s gloss argument)
o Constitutional in that it allows congress to ensure there is no undeclared war
 Text & Intent: Difference in war-related powers given to Legislative and to Executive
o The final part of the resolution makes the preceding provisions effectively meaningless b/c it
restores the const powers to the status quo.
 Requirements
o Requires POTUS in every possible instance to consult with congress before introducing US Armed
Forces into hostilities - But what does “consult” mean? To get opinion
o POTUS shall submit report to congress within 48 hours of introducing forces into hostilities POTUS is to periodically report to congress, at least every 6 months during the use of forces in
hostilities
o POTUS is to terminate use of forces 60 days after report is required to be submitted
 Unless congress has declared war, extended the 60-day period, or is physically unable to
meet.
 POTUS can extend another 30 days if he certifies unavoidable military necessity requires
continued use of force
Executive Privilege
Executive Authority:
 Article II, §1: Vests “the executive power” in the POTUS of the U.S.
 Article II, §3: Provides that the POTUS “shall take Care that the Laws be faithfully executed”
 Does the Constitution recognize any “executive privilege”?
o Who decides whether the Constitution recognizes it?
 Court: we do, citing Marbury.
 Is executive privilege recognized in the Constitution?
o Text: No text providing for it
 “Nowhere in the Constitution [is] there any explicit reference to a privilege of
confidentiality, yet to the extent this interest relates to the effective discharge of a
President’s powers, it is constitutionally based.”
o Intent: nothing here one way or the other as to the intent of the framers
o Functional argument:
• “Nowhere in the Constitution [is] there any explicit reference to a privilege of
confidentiality, yet to the extent this interest relates to the effective discharge of a
President’s powers, it is constitutionally based.”
• Need for president to receive candid advice
• Without assurance of confidentiality that might not be possible
United States v. Nixon (1974)
Facts: A grand jury returned indictments of POTUS Richard Nixon’s closest aides in the Watergate affair and
named him as non-indicted conspirator. Special prosecutor appointed by Nixon and the Ds sought audiotapes of
conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena
claiming, “executive privilege,” which is the right to withhold information from other government branches to
preserve confidential communications within the executive branch or to secure the national interest.
Holding: Nixon must obey the subpoena and produce the documents and tapes.
Rule: Neither separation of powers doctrine nor generalized need for confidentiality of high-level
communications can sustain absolute presidential privilege. (Broad – No person above the law)
Reasoning: Court granted that there was a limited executive privilege in areas of military or diplomatic affairs
but gave preference to “the fundamental demands of due process of law in the fair administration of justice”.
 Recognizes a need for confidentiality but must yield when there is import countervailing interests (such
as criminal trial) and cannot interfere with the ability of the judiciary to perform its constitutional
functions.
Nixon v. Fitzgerald (1982): Damages for misconduct while in office
 F: Fitzgerald brought an action against POTUS Nixon claiming that he had been discharged from a
government position b/c he had exercised his right to free speech
o Court held that the POTUS was immune from an action of damages
 Time consuming nature of litigation
 Political harassment
o However, Court also acknowledged that absolute immunity would leave the nation without
sufficient protection against misconduct by the Chief Executive
 Safeguards already in place
 Impeachment
 Constant scrutiny by press
 Oversight by Congress
 Desire for re-election
Clinton v. Jones (1997): Damages for claims unrelated to service in office
 Court distinguished Nixon v. Fitzgerald on the ground that it involved official conduct
 Here, the alleged misconduct took place prior to Clinton’s Presidency
 Don’t have immunity for unofficial acts
Ashcroft v. Al-Kidd (2011): Court held (1) on the merits, Al-Kidd failed to allege a 4th Amendment violation
b/c subjective motivation of the gov’t officials was irrelevant to lawfulness of the arrests and detentions; (2)
assuming for the sake of argument that the 4th Amendment was violated, Ashcroft was still entitled to qualified
immunity  Qualified immunity protects all but plainly incompetent or those who knowingly violate the law.
Ziglar v. Abbasi (2017): Court determined, by a plurality vote, that non-U.S. citizens, most of whom were
Muslim of Middle Eastern origin, arrested in the immediate aftermath of the September 11 attacks cannot sue
high level federal officials for the conditions of their confinement. Court held that in suits against government
officials for personally violating the Constitution, “context” should be defined narrowly for the purpose of
determining whether a claim arose in a “new context,” and the government officials in this case are entitled to
qualified immunity. In order to respect the separation of powers, the situations in which a court determined that
there was an implied right of action for monetary damages against a federal official should be rare.
The “Law” of Impeachment
Article II, Section 4
 Provides that “the President, Vice President, and all civil Officers of the U.S., shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors”
Article I, Section 2
 Provides the “the House of Representatives shall have the sole Power of Impeachment”
Article I, Section 3
 Provides that “The Senate shall have the sole Power to try all Impeachments. When sitting for that
Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the
Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of
the Members present.”
 Judgment in Cases of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the
Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.
Article II, Section 2
 President “shall have Power to grant Reprieves and Pardons for Offenses against the United States,
except in Cases of Impeachment.
Non-Delegation Doctrine
The non-delegation doctrine is a principle in constitutional and administrative law that Congress cannot
delegate its legislative powers to other entities. This prohibition typically involves Congress delegating its
powers to executive agencies or to private entities.
Simply put lawmakers cannot allow others to make laws. In the context of the federal government, the doctrine
comes from an interpretation of Article I of the United States Constitution and the separation of powers
principle. Under a strict application of the nondelegation doctrine, Congress would not be allowed to let the
president, administrative agencies, private corporations, or courts to pass laws.
J.W. Hampton v. United States (1928): Supreme Court clarified that when Congress does give an agency the
ability to regulate, Congress must give the agencies an "intelligible principle” on which to base their
regulations.
A.L.A. Schechter Poultry Corp. v. United States (1935): Supreme Court held that "Congress is not permitted to
abdicate or to transfer to others the essential legislative functions with which it is thus vested."
United States v. Curtiss-Wright Corp. (1936): Court reasoned that the federal government could not exceed its
enumerated powers regarding internal issues but had a much broader scope of discretion in foreign affairs.
Because "the President alone has the power to speak or listen as a representative of the nation," Congress may
provide the President with a special degree of discretion in external matters which would not be afforded
domestically. Roosevelt thus had the discretion to determine what impact a certain policy might have on foreign
affairs and make decisions accordingly, even had Congress not authorized him.
Clinton v. City of New York (1998): President Clinton’s exercise of power under the Line Item Veto Act of
1996 to cancel provisions in a budget bill was held unconstitutional by the Supreme Court because the President
must either veto the entire law or approve the entire law. The provisions allowing cancellations in the Line Item
Veto Act are unconstitutional because it gives the President unilateral authority to change the text of duly
enacted statutes, and thus violates Article I, Section 7.
Article I, Section 7 provides “Every Bill which shall have passed the House of Representatives and the Senate,
shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it,
but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter
the Objections at large on their Journal, and proceed to reconsider it.”
Examples: Zivotofsky, Curtis-Wright
Justice Jackson:
Concurrence Categories