Sep of Powers – Attack Sheet – Peterson – Fall 2011
Introduction
 Formalism (set rules) v. Functionalism (basic principle w/changing rules)
 Power of each branch (statutory authority, no statute, statutory restrictions)
Executive and the Courts
 Marbury v. Madison
o Court power to decide if a law/executive action is constitutional
o Art. 3 jurisdictional limitations (case/controversy, appellate system, precedents, jury)
 Limitations on judicial power: (1) textual/practical limitations, (2) political question doctrine
 Role of government lawyer: president’s advocate or independent lawyer?
Executive and Congress
 Inherent executive power
o In Re Neagle & In Re Debs: Power to makes sure laws are enforced needs no statute
o Inherent exec. Power Restrictions: (1) External restrictions (Amds.), (2) Explicit adjacent
powers (textually committed to other), (3) Implicit adjacent powers (e.g. appropriations)
 Congressional Acquiescence: US v. Midwest Oil (expansion of exec. power thru acquiescence)
 Youngstown Sheet & Tube: President’s inherent power is limited (can’t legislate, seize property)
Combining Powers in the Executive or in Courts
 Nondelegation Doctrine (intelligible principle, concerns: aggrandizement, pol. accountability)
 Mistretta v. US: majority (delegation ok; sentencing traditionally shared by branches)
o Scalia: Congress can’t delegate strictly legislative powers
Congressional Aggrandizement
 Legislative Veto Ban: INS v. Chadha (requirement of bicameralism and presentment)
o Peterson’s Theory: substantive laws affecting ppl outside Cong. need bicam & present.
 Bowsher v. Synar: Can’t delegate executive power to legislative official (Comptroller General)
 MWAA v. Citizens: Can’t restrict officer conditions so only Congress can fill role
Presidential Veto Authority
 Veto power: Presentment ensures Presidential participation in legislative process
o Political Constraints: fear of override
o Signing statements: Congress can’t override; only ok w/something like legis. veto
 Pocket Veto: Barnes v. Kline (inter-Congress PV ok, intra-Congress PV ineffective)
 Ban Line-Item Veto (can’t change compromise of bicameralism and presentment)
o Clinton v. City of NY (Dissent/Scalia—NDD/delegation of legislative power issue)
o Discretionary spending ok v. Line Item Veto ban (purpose of discretion: changed circum)
Congress’s Power of the Purse
 Antideficiency Act (w/o appropriations, govt can’t spend $, unless authorized by law/essential)
 Miscellaneous Receipts Act (settlement $, other $ earned by govt goes to general treasury)
 Judgment Fund (guarded from raid by DOJ, can’t go to broken contracts)
o Pigford (can’t use J. fund to correct injustice where govt has a solid case)
 Brown v. Califano (thru appropriations, Congress can restrict pres. to use specific const. remedy)
 Judicial Task Forces (Congress can restrict tastk forces thru appropriations, but can’t restrict
internal affairs of courts)
 Lincoln v. Vigil (Congress can only change [unreviewable] spending discretion through statute)
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Impoundment, City of New Haven (leg. Veto in Impoundment Control Act not severable)
Limitations on mandatory spending (can’t take over duties textually committed to President)
Impeachment
 Definition of High Crimes and Misdemeanors (Madison says “maladministration too vague”)
 Judges and Impeachment (good behavior and impeachment clauses)
Judicial Review of Impeachment and Congressional Expulsion
 Impeachment: Nixon v. US (Senate’s “trial” ok: either political question or decided on merits)
 Expulsion: Powell v. McCormack (House exclusion reviewable and restricted to 3 requirements)
Congressional Immunity: Speech or Debate Clause
 Gravel v. US (aide and member treated as one, informing public not core legislative duty)
 Ability of Congress to Investigate: must justify through core legislative purpose
 Davis v. Passman (remedy is damages for sexist firing, can’t force rehire)
o Now S & D clause would protect legislature’s core function of personnel management
Executive Immunity
 Reasons: (1) avoid distractions, (2) need for candor, (3) respect for office, (4) avoid caution for
fear of suits, (5) president is easy target for suits
 Nixon v. Fitzgerald (pres. absolute immunity for actions within outer perimeter of official funcs.)
 Clinton v. Jones (no immunity for non-official civil suits)
 Harlow & Butterfield v. Fitzgerald (aides don’t have same immunity as pres; aides have good
faith immunity which is an objective reasonable aide standard)
 Mitchell v. Forsyth (no absolute immunity, even w/nat. security matters; get qualified immunity)
Informational Privileges
 US v. Nixon (president gets presumptive, not absolute privilege; must balance interests)
 Congressional Subpoena of Documents (president must assert privilege; parties usually negotiate)
 Nixon v. Administrator of GSA (see if doc. release hinders president from doing his const. duties)
 Olson & Cooper Memos (Congress can’t mandate prosecution for contempt of congress for
refusal to produce documents; can’t have imbalance in consequences for 2 branches)
Appointments
 Buckley v. Valeo (Congress can’t give itself appts power, appts clause has subs. meaning)
 FOMC (FOMC w/great economic power has some private appt, yet no one challenges this)
 Morrison v. Olson (appt of independent counsel by special division ok; IC is inferior officer;
Congress wants to avoid pres. conflict of interest; special division is a court of law)
 Free Enterprise Fund (SEC is head of depart., PCAOB is inferior b/c it has a supervisor)
Removals
 Myers v. US (Art. 2 vesting mandates presidential control over removals—president must
supervise and control executive branch)
 Humphrey’s Executor (for-cause removal okay; FTC is a legislative/judicial branch)
 Bowsher v. Synar (Congress can’t exercise executive powers)
 Morrison v. Olson (removal restrictions must balance congressional need with president’s ability
to do his constitutional duty)
 Meaning of For-Cause Removal (untested: competency? Consistency with executive?)
 Free Enterprise Fund (double layer of for-cause removal not okay, no political accountability)