Are executive privilege and executive order constitutional?
Executive Power History Lab
Lab Title: Are executive privilege and executive order constitutional?
Author, School, School System: P. Kayleen Reese, Centennial High, Howard County Public Schools
Grade Level: 10th grade
Duration of the History Lab: 3-5 50-minute classes
Maryland Curriculum Objectives: Analyze the powers, responsibilities and limitations of representatives in
executive positions.
Essential Question: The History Lab asks students to argue the constitutionality of executive privilege and
executive order by examining 2 case studies—US. v. Nixon and Korematsu v. US. This lab is part of the unit on
the executive branch and focuses on the powers of the presidency. Executive privilege and executive order are
intriguing powers in that they are not explicitly stated in the Constitution, and are increasingly used by various
presidents. The documents and activities in the lab ask students to evaluate the use of these powers.
Teacher Background Essay:
Crenson, Matthew A., and Benjamin Ginsberg. Presidential Power: Unchecked and Unbalanced. New York:
Norton, 2007. Print.
Rudalevige, Andrew. The New Imperial Presidency: Renewing Presidential Power after Watergate. Ann Arbor:
University of Michigan, 2005. Print.
Schlesinger, Arthur M. The Imperial Presidency. Boston, MA: Houghton Mifflin, 2004. Print.
The President of the United States is vested with certain limited powers, among these are to command the
military, make treaties, nominate people to executive and judicial positions, give the State of the Union,
propose legislation, veto or approve laws, declare war and execute the laws. Presidents also exercise other
powers that are not so clearly stated in the Constitution—namely the authority to invoke executive privilege
and issue executive orders. Depending on how one interprets the Constitution, the use of these implied
powers might call their constitutionality into question.
Executive privilege is the ability of the president to withhold information from Congress and the courts.
Presidents justify the invocation of executive privilege because the Constitution vests the “executive power” in
a President (Article 1, Clause 1). In order for presidents to carry out the laws they must be able to consult with
advisors without concern that their conversations may become public. In addition, the ability to keep
conversations and documents confidential is important to national security. All presidents since George
Washington have claimed an inherent right to executive privilege, although the phrase was not coined until
Eisenhower’s Attorney General in the 1950’s used the phrase.
The most notable invocation of executive privilege was by President Nixon during the Watergate Scandal.
Investigations by Congress and the press about the break-in of the Democratic Headquarters at the Watergate
Hotel revealed that tape recordings of conversations about the break-in existed. Congress subpoenaed the
Are executive privilege and executive order constitutional?
tape recordings. Nixon claimed executive privilege because the recordings were confidential conversations
among his aides. In the Supreme Court case US v Nixon, the Court ruled unanimously that the withholding of
the tapes was not for national security reasons, but to avoid criminal prosecution. Therefore, the invocation of
executive privilege in the Watergate case was not permitted1. In this history lab, students use the opinion of
the Supreme Court to examine the constitutionality of the presidential use of executive privilege.
Executive orders are declarations by the president that concern how the executive branch should implement
and enforce laws. Executive orders are published by the Office of the Federal Register and have the force of
law, even though they do not go through the legislative process. Presidents use executive orders to direct
federal agencies how to implement laws, circumvent delay in the legislative process, define regulations
imposed by laws, structure the executive branch, and direct the military (Rudalevige, pg 177). All presidents
since George Washington have issued executive orders.
Franklin Delano Roosevelt’s executive order #9066 directed the Secretary of War to remove people of
Japanese descent from the west coast of the United States following the attack on Pearl Harbor. FDR based
the order on the power of the President to conduct war. Fred Korematsu, a Japanese American citizen, was
arrested when he refused to report to a relocation center. He sued the US government on the basis that the
law discriminated against him based on his ethnicity. In the Supreme Court decision, the majority opinion
declared that because the country was at war, the executive order was permissible. The dissenting opinion
protested the racial nature of the order and claimed that it denied people of Japanese descent equal
protection of the laws as guaranteed by the Fifth Amendment2. In this history lab, students examine the
opinions of the Supreme Court to examine the constitutionality of executive orders.
Why should American citizens be concerned about the constitutionality of executive privilege and executive
order?
I argue that the American public should care about presidential use of these powers because, as the case
studies in this History Lab show, the powers can be abused. How can the abuse be prevented? The answer to
that question is that our system of checks and balances prevents presidents from abusing their powers.
However, it is up to the American public and its elected members of Congress and the judicial branch to
oversee the actions of the president. “The freedoms secured by the checks and balances of government are
not automatic but depend on the exertions of public servants and the citizens they serve” (Rudalevige, pg x).
If Congress and the Supreme Court do not choose to oversee the executive branch, then presidents will
continue to expand their powers. After the Watergate scandal and the Vietnam War, Congress reigned in the
powers of the presidency. In the decades that followed, however, the presidency has regained much of the
power that it lost in the 1970’s. Now, in post 9/11 America, presidents have continued to increase their
power, not just through executive privilege and executive order, but also through signing statements,
presidential memoranda, and the centralization of power inside the White House.
This History Lab uses two case studies—Nixon v. US and Korematsu v US Supreme Court cases—to analyze the
use of executive privilege and executive order. Students argue one side of the issue and are encouraged to
1
The fallout from the Watergate scandal prompted presidents to stop calling executive privilege by name, but
it did not stop its use (Rudalevige, pg 182).
2
The American government issued a formal apology to Fred Korematsu and Japanese Americans for the
discrimination of people of Japanese descent in 1988. Survivors were also compensated $20,000.
Are executive privilege and executive order constitutional?
draw conclusions about the importance of the system of checks and balances in limiting the use of presidential
power.
Materials:
 Hook exercises—Truman political cartoon, checks and balances diagram, Video of Obama,
 Student Background Essay
 Documents A-I with guiding questions for each document
 Buckets and chickenfoot graphic organizer
 Blank outline for essay
Historical Sources with Annotations:
 Document A: US Constitution, Article II
Article II outlines the powers of the president. Students examine the excerpt to identify the powers
expressly given to the president and if Article II provides a justification for implied powers.
 Document B: Definition of executive privilege
This secondary source explains executive privilege and gives a brief justification for presidents’ use of
it.
o West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. 28 June,
2012 <http://legal-dictionary.thefreedictionary.com/executive+privilege>.
 Document C: Background of Watergate scandal
President Nixon invoked executive privilege during the investigations into the break-in at the
Watergate Hotel. This secondary source provides the context for Watergate.
o Supreme Court Case Study 47: The President and Executive Privilege, US v. Nixon, 1974.
Glencoe.
 Document D: Majority Opinion (9-0) in US v. Nixon
The unanimous opinion of the Supreme Court in US v. Nixon defines the circumstances under which
presidents can invoke executive privilege. Students can support the argument that executive privilege
is constitutional by citing that the Court declares that it is “rooted in the separation of powers”.
However, students who believe it is unconstitutional may cite “neither the separation of powers nor
the need for confidentiality…can sustain an absolute, unqualified Presidential privilege.” Very astute
students may highlight the Court’s recognition of the necessity of checks and balances by citing “the
separate powers were not intended to operate with absolute independence.”
o Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June,
2012 http://www.streetlaw.org/en/Page/718/Key_Excerpts_from_the_Opinion.
 Document E: Definition of executive order
This secondary source explains executive order and gives a brief justification for presidents’ use of it.
o West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. 28 June,
2012 <http://legal-dictionary.thefreedictionary.com/executive+order>.
 Document F: Franklin D. Roosevelt’s Executive Order #9066
This is an excerpt from FDR’s executive order issued a little more than 2 months after the bombing
Pearl Harbor that allowed the military to remove people of Japanese descent from the West Coast of
the US.
o Executive Order #9066, Issued Franklin D. Roosevelt, February 19, 1942.
 Document G: Background of Korematsu case
Fred Korematsu, a Japanese American citizen, refused to leave his home and was arrested for violating
executive order #9066. This secondary source provides the context for the Supreme Court case that
ensued after he was arrested.
o Supreme Court Case Study 22: The Rights of People of Suspect Ethnic Backgrounds, Korematsu
v. United States, 1944. Glencoe.
Are executive privilege and executive order constitutional?


Document H: Majority Opinion (6-3) in Korematsu v. US
Six of the nine Supreme Court justices sided with the US government ruling that the executive order
was constitutional because it was a time of war. Students who believe that executive orders are
constitutional may cite “we are unable to conclude that it was beyond the power of Congress and the
Executive to exclude those of Japanese ancestry.” This implies that the Court felt that the executive
order was based on powers given in the Constitution, and thus legal. Students may also note that the
case shows the importance of checks and balances by citing “the courts must subject [orders that are
based on a racial group] to the most rigid scrutiny.”
o Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June,
2012 <http://www.streetlaw.org/en/Page/323/Key_Excerpts_from_the_Majority_Opinion>.
Document I: Dissenting Opinion (6-3) in Korematsu v. US
Three of the nine justices sided with Korematsu agreeing that the order allowed racial discrimination
and denied him Constitutional rights. Students can use this decision to conclude that because orders
can be used to discriminate, they are unconstitutional.
o Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June,
2012 <http://www.streetlaw.org/en/Page/324/Key_Excerpts_from_the_Dissenting_Opinion>.
Procedures:
I.
Introduce the essential question, based on the unit indicator, which will guide the History Lab:
 The essential question is “Are executive privilege and executive order constitutional?”
 This lab addresses the essential curriculum objective: Analyze the powers, responsibilities and
limitations of representatives in executive positions.
 The question allows students to identify and defend their own perspective on the constitutionality
of executive powers based on 2 case studies—US v. Nixon and Korematsu v. US.
II.
Initiate the History Lab:
 Hook Exercise #1: Project the “Truman requests more powers” political cartoon from 1951. Ask:
Who and what is pictured in the cartoon? What does Truman want? Based on the size of the
shoe, what is the perspective of the cartoonist on presidential power? What branches of
government are pictured in the cartoon? Why does the cartoonist include Congress?
 Hook Exercise #2: Analyze the diagram of the Checks and Balances system. Ask: What would the
Congress have to do to increase the President’s power?
 Hook Exercise #3: Can you imagine a situation in which a president might need to act without
Congressional approval? Allow students to brainstorm. Show students the video of President
Obama justifying his plan to act if Congress won’t. Give students a purpose for watching--to
identify Obama’s arguments for acting without Congress. After the video ask: Why does Obama
feel justified in acting without Congress? Are these valid arguments? Why or why not? How does
your opinion of Obama affect your answer to that question? What can the president do without
the approval of Congress? Do you think this is an appropriate use of presidential power?
III.
Frame the Essential Question:

Explain to students that one way presidents can act without Congress is through executive orders.
Students may read the Student Background Essay and answer the guiding questions. This essay
will introduce students to executive privilege, executive order, the Watergate scandal and the
circumstances surrounding FDR’s executive order #9066.
IV.
Modeling and facilitating the historical process:
Are executive privilege and executive order constitutional?




V.
VI.
Project Document A: US Constitution, Article II. Conduct a think aloud modeling how to read the
document—define key words, paraphrase the meaning of each section, and questioning the
document. Answer the guiding questions using the same method.
Allow students to practice reading Document B: Definition of executive privilege with a partner.
Share answers as a class.
Students may work independently or in small groups to read documents C-I and answer the
guiding questions. Historical thinking skills are identified in each question.
Be sure that students identify evidence in each document that supports or refutes the
constitutionality of executive privilege and executive order. Assure students that there is NOT one
“right” answer to the essential question; their answers will be graded based on their evidence and
reasoning.
Synthesizing information and developing interpretations:
 Facilitate a class discussion in order to define executive privilege and executive order and how
each was used in the Watergate Scandal and the internment of Japanese.
 Conduct a debate in which students use the documents to defend their position on the essential
question—are executive privilege and executive order constitutional?
 Synthesize the debate by asking why there are differing opinions. One reason lies in whether or
not one believes in a strict or loose interpretation of the Constitution. Furthermore, even though
we all read the same documents, our own biases dictate what we choose to remember from the
documents to support our opinion.
 Emphasize that no matter what our opinion on the constitutionality of executive powers, what
prevents presidents from abusing their powers? In a resounding chorus, the class should answer
“Checks and Balances!”
Assessment:
Weighted Multiple Choice
Based on the case studies we examined in the Executive Power History Lab, which is the most accurate
statement about the constitutionality of executive privilege and executive order?
a. Executive privilege and executive order are unconstitutional. (W0)
b. Executive privilege and executive order are implied by the “executive” power vested in the
President by the Constitution. (W1)
c. The constitutionality of executive privilege and executive order is determined on a case-bycase basis through the system of checks and balances. (W3)
d. The constitutionality of executive privilege and executive order are dependent upon one’s own
interpretation of the Constitution. (W1)
e. Executive order #9066 was constitutional. (W0)
Multiple Choice
On what power granted to the president by the Constitution did FDR base his executive order #9066?
a. Nominating power
b. War power
c. Executive power
d. Treaty power
Are executive privilege and executive order constitutional?
What type of powers are executive privilege and executive order?
a. expressed
b. concurrent
c. implied
d. delegated
Which situation below describes an appropriate use of executive privilege?
a. The president refuses to tell Congress the exact location of troops.
b. The president refuses to hand over documents related to a government loan to “green”
businesses that went bankrupt.
c. The president refuses to hand over tape recordings of conversations with top aids about a
possible criminal activity.
d. The president refuses to allow a top aide to testify before Congress about the firing of federal
prosecutors.
Performance Tasks
(First task assesses student understanding of executive power; the second measures understanding of
executive privilege and historical thinking skills.)
Directions: Read the following vignette. Then, answer the questions that follow.
It is 1948. You are president. Jim Crow laws legally discriminate between the races. African
Americans served in segregated units in WWII. Since the end of the war, several African American
veterans have been attacked by white mobs. You have ordered investigations into the attacks, and
created committees to recommend policies that would identify ways the executive branch could help
end discrimination. You have met with African American leaders and urged Congress to pass civil
rights bills. However, none of these actions have helped bring about civil rights.
Assume you would like to use one of your executive powers to help end discrimination. Which power
would be applicable to deal with this situation—executive privilege or executive order? Would you
exercise that power? Why or why not?
Directions: Read the article “Boehner: Contempt Vote on Holder Will Proceed" from CNN about the recent use
of executive privilege by President Obama. Then draw a political cartoon that satirizes the situation described
in the excerpted article. Be sure that the cartoon demonstrates your understanding of executive privilege and
illustrates the Democrat’s and/or Republican’s point of view of Obama’s use of executive privilege. You may
also consider drawing a connection between Obama’s use of executive order and Nixon’s use of executive
order during Watergate and/or other current events.
Are executive privilege and executive order constitutional?
Boehner: Contempt Vote on Holder Will Proceed
By Deirdre Walsh, Terry Frieden and Tom Cohen from CNN
Note: The following excerpts are in a different order than they appear in the original article in order to make
the situation understandable for students.
The Bureau of Alcohol, Tobacco, Firearms and Explosives launched Operation Fast and Furious out of Arizona
to track weapons purchases by Mexican drug cartels. It followed similar programs started in the Bush
administration.
However, Fast and Furious lost track of more than 1,000 firearms it was tracking in the operation, and two of
the lost weapons turned up at the scene of the 2010 killing of U.S. Border Patrol agent Brian Terry.
[House Oversight Committee Chairman Darrell] Issa and Republicans contend that [Attorney General Eric]
Holder and the Justice Department are concealing details of how Operation Fast and Furious was approved
and managed.
However, Holder has refused to turn over materials containing internal deliberations, and asked Obama to
assert executive privilege over such documents last week.
President Barack Obama has asserted executive privilege on some documents in the dispute, preventing them
from being turned over on grounds they include internal deliberations traditionally protected from outside
eyes.
The U.S. House will vote Thursday on holding Attorney General Eric Holder in contempt of Congress for
withholding documents involving the failed Fast and Furious weapons crackdown, Speaker John Boehner said
Wednesday.
At Tuesday's meeting, the Justice Department also offered to conduct a briefing, give Congress documents
related to whistle-blowers in the case and work with the committee to respond to any questions it may have
had after reviewing the materials.
"This was a good-faith effort to try to reach an accommodation while still protecting the institutional
prerogatives of the executive branch, often championed by these same Republicans criticizing us right now,"
White House spokesman Eric Schultz told CNN. "Unfortunately, Republicans have opted for political theater
rather than conduct legitimate congressional oversight."
Boehner, however, said Wednesday that a failure to cooperate by the Obama administration had forced House
Republicans to take up the contempt measure.
The ranking Democrat on the oversight committee called Wednesday for Boehner to try to work out a solution
with Holder instead of holding a vote on Thursday. "Why are we steamrolling ahead on a matter of such
gravity?" asked Rep. Elijah Cummings, D-Maryland. "In my opinion the answer is plain and simple: politics."
Cohen, Tom, Terry Frieden, and Deirdre Walsh. "Boehner: Contempt Vote on Holder Will Proceed." CNN
Politics. Cable News Network, 27 June 2012. Web. 27 June 2012.
<http://www.cnn.com/2012/06/27/politics/holder-contempt/index.html>.
Are executive privilege and executive order constitutional?
Adopted and modified from the original version found at
http://www.mdk12.org/instruction/curriculum/hsa/us_history/instructional.html
and at the University of California, Davis History Project
Are executive privilege and executive order constitutional?
Document A (answer key)
Section. 1.
Clause 1: The executive Power shall be vested in a President of the United States of America…
Clause 8: Before he enter on the Execution of his Office, he shall take the following Oath or
Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the
United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the
United States."
Section. 2.
Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States… and he shall have Power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of Impeachment.
Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of
the Supreme Court, and all other Officers of the United States…
Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of
the Senate…
Section. 3.
He shall from time to time give to the Congress Information of the State of the Union, and recommend
to their Consideration such Measures as he shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or either of them, … he shall receive Ambassadors and
other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all
the Officers of the United States.
Source: US Constitution, Article II
1. Close Reading: What powers are given to the President in the Constitution?
Uphold Constitution, command military, grant pardons, make treaties, nominate officials, give State of the
Union, propose legislation, execute laws
2. Corroboration: Congress has both expressed and implied powers. Above the expressed powers of the
President are listed. Do you think Presidents have implied powers? Find evidence from the Constitution
for your opinion.
Answers will vary. Students who don’t think that Presidents have implied powers may point to the fact
that there is no necessary and proper clause in Article II like there is for Article I for Congress. Students
who think Presidents do have implied powers might point to the oath of office and that Presidents “take
care that laws be faithfully executed.”
3. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
By looking at the Constitutional powers of the president, students begin to formulate their opinion about
executive privilege and order. Nothing is written in the Constitution about either of these powers. If
students think they are constitutional, then they interpret the Constitution loosely; if students think they
are unconstitutional, then they interpret the Constitution strictly.
Are executive privilege and executive order constitutional?
Document B (answer key)
Source: West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. 28 June, 2012 <http://legaldictionary.thefreedictionary.com/executive+privilege>.
[Executive privilege is] the right of the president of the United States to withhold information from
Congress or the courts.
Historically, presidents have claimed the right of executive privilege when they have information they
want to keep confidential, either because it would jeopardize national security or because disclosure
would be contrary to the interests of the Executive Branch.
The Constitution does not specifically enumerate the president's right to executive privilege; rather, the
concept has evolved over the years as presidents have claimed it. As the courts have ruled on these
claims, their decisions have refined the notion of executive privilege and have clarified the instances in
which it can be invoked. The courts have ruled that it is implicit in the constitutional Separation of
Powers, which assigns discrete powers and rights to the legislative, executive, and judicial branches of
government. In reality, however, the three branches enjoy not separate but shared powers, and thus are
occasionally in conflict. When the president's wish to keep certain information confidential causes such a
conflict, the president might claim the right of executive privilege.
The term executive privilege emerged in the 1950s, but presidents since George Washington have
claimed the right to withhold information from Congress and the courts.
1. Close Reading: What is executive privilege?
Allows the president to withhold information from Congress and the Courts. Used to protect national
security or protect confidential conversations.
2. Close Reading: Based on information in the document, what is in the Constitution about executive
privilege?
The Constitution does not explicitly state that the president has the ability to invoke executive privilege.
However, the Supreme Court has ruled that it is inherent in the principle of separation of powers.
3. How does the information in this document help you answer the question, “Are executive privilege and
executive order Constitutional?”
If students are strict constructionists, then they will highlight that executive privilege is not in the
Constitution; loose constructionists will support the view of the Supreme Court.
Are executive privilege and executive order constitutional?
Document C (answer key)
Source: Supreme Court Case Study 47: The President and Executive Privilege, US v. Nixon, 1974. Glencoe.
During President Nixon’s 1972 reelection campaign, several men were caught breaking into the
Democratic National Committee’s headquarters in the Watergate apartment and office complex in
Washington, D.C. It turned out that the burglars were associated with the president’s campaign. A
nationwide political and public outcry mushroomed into what became known as the Watergate
scandal.
The United States Department of Justice appointed a special prosecutor to carry out an independent
investigation of the scandal. From the investigation, trials of various White House staff members,
investigative newspaper reports, and televised Senate Select committee investigative hearing, a
shocked nation learned that the White House was involved in planning and covering up the burglary.
When it was revealed that the president had taped many conversations in the White House Oval
Office, both the Senate investigating committee and the special prosecutor attempted to secure the
tapes. The president refused to release them claiming separation of powers and executive privilege,
the right of the president to keep his conversations confidential. The special prosecutor subpoenaed
the tapes, and a federal judge ordered President Nixon to release them. Nixon refused and instead
turned to the Supreme Court for a judgment on executive privilege.
1. Close Reading: Who investigated the Watergate scandal?
Department of Justice/special prosecutor, investigative journalists, Senate Select Committee
2. Close Reading: What did the investigators subpoena?
The tape recordings of conversations in the Oval Office.
3. Close Reading: What was Nixon’s response to the subpoena?
President Nixon claimed executive privilege as the basis for refusing to turn over the tapes.
4. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
This document is about Nixon’s use of executive privilege. This case study will help students understand
how executive privilege is used.
Are executive privilege and executive order constitutional?
Document D (answer key)
Source: Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June, 2012.
<http://www.streetlaw.org/en/Page/718/Key_Excerpts_from_the_Opinion>.
Majority Opinion written by Warren Burger, Chief Justice of the Supreme Court, 1969-1986. The Supreme Court issued a
unanimous ruling against Nixon, requiring him to turn over the tapes.
…Neither the doctrine of separation of powers nor the need for confidentiality of high-level
communications…can sustain an absolute, unqualified Presidential privilege of immunity from judicial process
under all circumstances … Absent a claim of need to protect military, diplomatic, or sensitive national security
secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of
Presidential communications is significantly diminished by production of such material for [private]
inspection…
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional
duty of the Judicial Branch to do the justice in criminal prosecutions would plainly conflict with the function of
the courts under Art. III. In designing the structure of our Government and dividing and allocating the
sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were not intended to operate with absolute independence.
The expectation of a President to the confidentiality of his conversations and correspondence, …has all the
values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity
for protection of the public interest ... The privilege is fundamental to the operation of Government, and
inextricably rooted in the separation of powers under the Constitution.
But this presumptive privilege must be considered in light of our historic commitment to the rule of law.
We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
1. Corroboration: In what way does this document show checks and balances in action?
All 3 branches were involved. The Congress subpoenaed tapes while investigating the actions of the
president. Nixon claimed executive privilege to avoid turning over the tapes. The Supreme Court
determines whether or not Nixon is able to claim executive privilege.
2. Close Reading: Why did the Court deny President Nixon’s invocation of executive privilege?
Nixon cannot invoke executive privilege to avoid a criminal prosecution.
Are executive privilege and executive order constitutional?
3. Corroboration: Based on the Court’s decision, does the Constitution allow Presidents to invoke executive
privilege?
The Supreme Court states “neither the doctrine of separation of powers nor the need for confidentiality of
high-level communications…can sustain an unqualified Presidential privilege” as well as “ The privilege is
fundamental to the operation of Government, and inextricably rooted in the separation of powers under
the Constitution”
4. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
Even though the decision was unanimous, the answer to the previous question gives students evidence to
support either argument.
Are executive privilege and executive order constitutional?
Document E (answer key)
Source: West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. 28 June, 2012.
<http://legal-dictionary.thefreedictionary.com/executive+order>.
[An executive order] is a presidential policy directive that implements or interprets a federal [law], a
constitutional provision, or a treaty...
The president's power to issue executive orders comes from Congress and the U.S. Constitution.
Executive orders do not require congressional approval. Thus, the president can use them to set
policy while avoiding public debate and opposition. Presidents have used executive orders to direct a
range of activities, including establishing migratory bird refuges; putting Japanese-Americans in
internment camps during World War II…
Historically, executive orders related to routine administrative matters and to the internal operations
of federal agencies... More recently, presidents have used executive orders to carry out legislative
policies and programs. As a result, the executive order has become a critical tool in presidential
policy making.
1. Close Reading: What is an executive order?
Direct executive departments how to execute laws. They have the force of law without having gone
through the bill to law process.
2. Close Reading: Based on information in the document, what is in the Constitution about executive order?
It just says that the power to issue executive orders comes from the Congress and Constitution, but does
not give exact evidence from the Congress or the Constitution for the power.
3. How does the information in this document help you answer the question, “Are executive privilege and
executive order Constitutional?”
This document states that the power to issue executive order is based on the Constitution, but does not
provide substantial information about what exactly is in the Constitution about executive order. Strict
constructionists can use this to support their opinion. Loose constructionists might support their argument
by citing that executive orders direct the executive branch, a responsibility of the president.
Are executive privilege and executive order constitutional?
Document F (answer key)
Source: Executive Order #9066, Issued Franklin D. Roosevelt, February 19, 1942.
Whereas the successful prosecution of the war requires every possible protection against espionage and
against sabotage to national defense materials, premises and utilities…
…I hereby authorize and direct the Secretary of War…to prescribe military areas…the right of any person to
enter, remain in, or leave shall be subject to whatever restrictions the Secretary or Military Commander
may impose. The Secretary of War is hereby authorized to provide for residents of any such
area…transportation, food, shelter, and other accommodations as may be necessary…
1. Contextualization: What was happening at the time Roosevelt issued the executive order?
WWII happening, and the US had just joined the war after the Japanese had bombed Pearl Harbor on
December 7, 1941.
2. Close Reading: What happened to Japanese Americans as a result of Roosevelt’s executive order?
People of Japanese descent were moved to “military areas”.
3. Corroboration: Did Roosevelt’s order help to implement a federal law, constitutional provision or treaty?
Presidents have the power to command the military and ask for a declaration of war. Because the US is at
war, this executive order falls under the president’s war powers.
4. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
This document is an excerpt of FDR’s executive order #9066. Students can use this order to determine the
constitutionality of executive orders in general.
Are executive privilege and executive order constitutional?
Document G (answer key)
Source: Supreme Court Case Study 22: The Rights of People of Suspect Ethnic Backgrounds, Korematsu v. United States,
1944. Glencoe.
After the bombing of Pearl Harbor in December 1941 by Japanese planes, anti-Japanese sentiment on the
West Coast rose to hysterical proportions. All people of Japanese ancestry, even citizens of the United
States, were suspected of being pro-Japan, or worse—saboteurs and spies for Japan … President Franklin D.
Roosevelt issued an executive order that authorized the military to evacuate and relocate “all or any
persons”…to “war relocation centers”. The order affected approximately 112,000 persons of Japanese
ancestry, of whom about 70,000 were native-born American citizens…
Korematsu, a Japanese American citizen, refused to leave his home in California for a relocation camp. He
was convicted in federal court. His appeal to a United States circuit court failed, and he then brought the
case before the United States Supreme Court.
1. Corroboration: In what way does this document show checks and balances in action?
The president issued an executive order. Korematsu felt his rights were violated and sued in court. The
Supreme Court ruled on the constitutionality of the executive order.
2. Close Reading: Why did Korematsu sue the US government?
Korematsu didn’t want to leave his home because he felt his rights were being violated by the order.
3. How does this document help you to answer the question, “Are executive privilege and executive orders
Constitutional?”
This document provides context for the Korematsu Supreme Court case involving FDR’s executive order.
Are executive privilege and executive order constitutional?
Document H (answer key)
Source: Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June, 2012.
<http://www.streetlaw.org/en/Page/323/Key_Excerpts_from_the_Majority_Opinion>.
Mr. Justice Black delivered the following majority opinion (6-3) in Korematsu v. US
…It should be noted…that all legal restrictions which curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that
courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the
existence of such restrictions; racial antagonism never can...
…exclusion from a threatened area… has a definite and close relationship to the prevention of espionage
and sabotage….
…we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude
those of Japanese ancestry from the West Coast war area at the time they did. We uphold the exclusion
order as of the time it was made and when the petitioner violated it...
…To cast this case into outlines of racial prejudice, without reference to the real military dangers, which
were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because
of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because
the properly constituted military authorities feared an invasion of our West Coast and felt constrained to
take proper security measures, because they decided that the military urgency of the situation
demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and
finally, because Congress, reposing its confidence in this time of war in our military leaders — as
inevitably it must — determined that they should have the power to do just this. There was evidence of
disloyalty on the part of some, the military authorities considered that the need for action was great, and
time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that
at that time these actions were unjustified.
1. Corroboration: In what way does this document show checks and balances in action?
The Supreme Court is judging the constitutionality of an order made by the president.
2. Close Reading: What did the Court rule in Korematsu v. US?
The Court ruled in favor of the US government. The Court stated that the order was constitutional
because we were at war, there was disloyalty among some Japanese in America, and there was not
enough time to wait.
3. Close Reading: What does the ruling imply about the Constitutionality of Roosevelt’s executive order?
What does it imply about the Constitutionality of executive orders in general?
The Court declared that FDR’s executive order is constitutional. The Court does not state that all executive
orders are constitutional, however. In fact, the Court understands that when order single out a racial
group, they should be scrutinized by the Courts.
4. How does this document help answer the question, “Are executive privilege and executive order
Constitutional?”
Students should point out that the Supreme Court ruled that the executive order was constitutional
because the US was at war and the order was within the war powers of the president and Congress.
Are executive privilege and executive order constitutional?
Document I (answer key)
Source: Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June, 2012.
<http://www.streetlaw.org/en/Page/324/Key_Excerpts_from_the_Dissenting_Opinion>.
Mr. Justice Murphy, delivered the following dissenting opinion (6-3) in Korematsu v. US:
. . . Being an obvious racial discrimination, the order deprives all those within its scope of the equal
protection of the laws as guaranteed by the Fifth Amendment. … In excommunicating them without
benefit of hearings, this order also deprives them of all their constitutional rights to procedural due
process…
. . . to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory
action against the entire group is to deny that under our system of law individual guilt is the sole basis
for deprivation of rights. …To give constitutional sanction to that inference in this case, however wellintentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest
of the rationales …
No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by
holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of
persons of German and Italian ancestry . . .
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree
has no justifiable part whatever in our democratic way of life. …
1. Corroboration: In what way does this document show checks and balances in action?
The Supreme Court ruled on a executive order passed by the president.
2. Close Reading: What arguments are given for disagreeing with the majority of the Court?
Three of the nine justices believed that the order violated Korematsu’s right to equal protection and due
process. The order is racial discrimination. The justices point out that hearings were done for those of
German and Italian descent.
3. Close Reading: Does the Court rule on the Constitutionality of executive orders in general?
The Court does not rule on the constitutionality of all executive orders.
4. Corroboration: What protection does the Court provide if orders are discriminatory and thus
unconstitutional?
The courts allow citizens to sue for their rights if they feel that their rights have not been protected.
5. How does this document help to answer the question, “Are executive privilege and executive order
Constitutional?”
Students can use the dissenting opinion to support the view that executive orders are unconstitutional
because they can be used to discriminate against certain groups of people.
Are executive privilege and executive order constitutional?
Are executive privilege and executive order
Constitutional?
1951
Copyright 1997 State Historical Society of Wisconsin
http://telepresence.wisc.edu/ushistory/photos/html/1107.html
Are executive privilege and executive order constitutional?
Table of Contents
Hook Exercises 1-3
Student Background Essay
The Documents with Guiding Questions:
Document A: US Constitution, Article II
Document B: Definition of executive privilege
Document C: Background of Watergate scandal
Document D: Majority Opinion (9-0) in US v. Nixon
Document E: Definition of executive order
Document F: Franklin D. Roosevelt’s Executive Order #9066
Document G: Background of Korematsu case
Document H: Majority Opinion (6-3) in Korematsu v. US
Document I: Dissenting Opinion in Korematsu v. US
Essay Organizers
Are executive privilege and executive order constitutional?
Hook Exercise # 1
1951
Copyright 1997 State Historical Society of Wisconsin
http://telepresence.wisc.edu/ushistory/photos/html/1107.html
1. Who and what is pictured in the cartoon?
2. What does Truman want?
3. Based on the size of the shoe, what is the perspective of the cartoonist on presidential power?
4. What branches of government are pictured in the cartoon? Why does the cartoonist include
Congress?
Are executive privilege and executive order constitutional?
Hook Exercise #2
from glencoe.mcgraw-hill.com
1. Based on the system of checks and balances, what can the legislative branch do if the President does
something unconstitutional?
2. What can the judicial branch do if the President does something unconstitutional?
3. Consider the following quote: “The freedoms secured by the checks and balances of government are
not automatic but depend on the exertions of public servants and the citizens they serve” (Rudalevige,
pg x). According to the quote, under what circumstances are the checks and balances triggered?
Are executive privilege and executive order constitutional?
Hook Exercise #3
Watch the video at http://abcnews.go.com/Politics/video/obama-congress-wont-act-14841368 in which
Obama says, “If Congress won’t act, then I will.”
1. Why does Obama feel justified in acting without Congress? Are these valid arguments? Why or why
not?
2. How does your opinion of Obama affect your answer to the previous question?
3. In what ways can the president act without the approval of Congress?
4. Do you think this is an appropriate use of presidential power?
Are executive privilege and executive order constitutional?
Student Background Essay
Article II of the US Constitution describes the powers of the President, the
leader of the executive branch. Some of these powers may be familiar to you,
such as the power to veto laws passed by Congress and the power to
command the military. However, the power to invoke executive privilege and
issue executive orders may not be very well understood, even to many adult
Americans. All presidents since George Washington have invoked executive
privilege and issued executive orders. Both of these powers are based on the powers given in the Constitution,
but you will not find the exact phrases in Article II. If these powers are not directly given to the President in
the Constitution, are they constitutional? And, should American citizens be concerned that presidents use
these powers?
In the activities that follow, you will discover the exact definitions of these 2 powers, but it will be helpful to
make a prediction about their meaning. Executive privilege…well, privilege is a right or advantage that only
certain people get to enjoy—in this case it means that the president has a special right that other Americans
do not have. Executive order…an order is a direct command. Therefore, an executive order is a command
given by the President.
This History Lab examines 2 case studies to determine the constitutionality of
executive privilege and executive order—Watergate and the Internment of
Japanese during WWII. During the Watergate investigations, President Nixon
invoked executive privilege to avoid giving
Congress tape-recorded conversations about the
break-in at the Watergate Hotel. Just after Pearl Harbor, Franklin D. Roosevelt
issued an executive order that allowed the military to move all people of
Japanese descent into camps.
Was the use of executive privilege during Watergate and the use of executive order
during WWII constitutional? To answer that question, it is helpful to think about the
American system of checks and balances. As you read about the case studies, think
about how the Congress in the legislative branch and the Supreme Court in the
judicial branch checked the power of the president in the executive branch.
Are executive privilege and executive order constitutional?
Student Background Essay Questions
1. How many presidents have invoked executive privilege and issued executive orders?
2. Are the powers of executive privilege and executive order stated in the Constitution explicitly?
3. Would a person who believes in a strict or loose interpretation of the Constitution believe that
executive privilege and executive order are constitutional?
4. What system prevents any branch or person from exercising powers not allowed by the Constitution?
Are executive privilege and executive order constitutional?
Document A
Source: US Constitution, Article II
Section. 1.
Clause 1: The executive Power shall be vested in a President of the United States of America…
Clause 8: Before he enter on the Execution of his Office, he shall take the following Oath or
Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the
United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the
United States."
Section. 2.
Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States… and he shall have Power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of Impeachment.
Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of
the Supreme Court, and all other Officers of the United States…
Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of
the Senate…
Section. 3.
He shall from time to time give to the Congress Information of the State of the Union, and recommend
to their Consideration such Measures as he shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or either of them, … he shall receive Ambassadors and
other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all
the Officers of the United States.
1. Close Reading: What powers are given to the President in the Constitution?
2. Corroboration: Congress has both expressed and implied powers. Above the expressed powers of the
President are listed. Do you think Presidents have implied powers? Find evidence from the Constitution
for your opinion.
3. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
Are executive privilege and executive order constitutional?
Document B
Source: West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. 28 June, 2012 <http://legaldictionary.thefreedictionary.com/executive+privilege>.
[Executive privilege is] the right of the president of the United States to withhold information from
Congress or the courts.
Historically, presidents have claimed the right of executive privilege when they have information they
want to keep confidential, either because it would jeopardize national security or because disclosure
would be contrary to the interests of the Executive Branch.
The Constitution does not specifically enumerate the president's right to executive privilege; rather, the
concept has evolved over the years as presidents have claimed it. As the courts have ruled on these
claims, their decisions have refined the notion of executive privilege and have clarified the instances in
which it can be invoked. The courts have ruled that it is implicit in the constitutional Separation of
Powers, which assigns discrete powers and rights to the legislative, executive, and judicial branches of
government. In reality, however, the three branches enjoy not separate but shared powers, and thus are
occasionally in conflict. When the president's wish to keep certain information confidential causes such a
conflict, the president might claim the right of executive privilege.
The term executive privilege emerged in the 1950s, but presidents since George Washington have
claimed the right to withhold information from Congress and the courts.
1. Close Reading: What is executive privilege?
2. Close Reading: Based on information in the document, what is in the Constitution about executive
privilege?
3. How does the information in this document help you answer the question, “Are executive privilege and
executive order Constitutional?”
Are executive privilege and executive order constitutional?
Document C
Source: Supreme Court Case Study 47: The President and Executive Privilege, US v. Nixon, 1974. Glencoe.
During President Nixon’s 1972 reelection campaign, several men were caught breaking into the
Democratic National Committee’s headquarters in the Watergate apartment and office complex in
Washington, D.C. It turned out that the burglars were associated with the president’s campaign. A
nationwide political and public outcry mushroomed into what became known as the Watergate
scandal.
The United States Department of Justice appointed a special prosecutor to carry out an independent
investigation of the scandal. From the investigation, trials of various White House staff members,
investigative newspaper reports, and televised Senate Select committee investigative hearing, a
shocked nation learned that the White House was involved in planning and covering up the burglary.
When it was revealed that the president had taped many conversations in the White House Oval
Office, both the Senate investigating committee and the special prosecutor attempted to secure the
tapes. The president refused to release them claiming separation of powers and executive privilege,
the right of the president to keep his conversations confidential. The special prosecutor subpoenaed
the tapes, and a federal judge ordered President Nixon to release them. Nixon refused and instead
turned to the Supreme Court for a judgment on executive privilege.
5. Close Reading: Who investigated the Watergate scandal?
6. Close Reading: What did the investigators subpoena?
7. Close Reading: What was Nixon’s response to the subpoena?
8. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
Are executive privilege and executive order constitutional?
Document D
Source: Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June, 2012.
<http://www.streetlaw.org/en/Page/718/Key_Excerpts_from_the_Opinion>.
Majority Opinion written by Warren Burger, Chief Justice of the Supreme Court, 1969-1986. The Supreme Court issued a
…Neither the doctrine of separation of powers nor the need for confidentiality of high-level
communications…can sustain an absolute, unqualified Presidential privilege of immunity from judicial process
under all circumstances … Absent a claim of need to protect military, diplomatic, or sensitive national security
secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of
Presidential communications is significantly diminished by production of such material for [private]
inspection…
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional
duty of the Judicial Branch to do the justice in criminal prosecutions would plainly conflict with the function of
the courts under Art. III. In designing the structure of our Government and dividing and allocating the
sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were not intended to operate with absolute independence.
The expectation of a President to the confidentiality of his conversations and correspondence, …has all the
values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity
for protection of the public interest ... The privilege is fundamental to the operation of Government, and
inextricably rooted in the separation of powers under the Constitution.
But this presumptive privilege must be considered in light of our historic commitment to the rule of law.
We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
unanimous ruling against Nixon, requiring him to turn over the tapes
1. Corroboration: In what way does this document show checks and balances in action?
2. Close Reading: Why did the Court deny President Nixon’s invocation of executive privilege?
3. Corroboration: Based on the Court’s decision, does the Constitution allow Presidents to invoke executive
privilege?
Are executive privilege and executive order constitutional?
4. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
Document E
Source: West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. 28 June, 2012.
<http://legal-dictionary.thefreedictionary.com/executive+order>.
[An executive order] is a presidential policy directive that implements or interprets a federal [law], a
constitutional provision, or a treaty...
The president's power to issue executive orders comes from Congress and the U.S. Constitution.
Executive orders do not require congressional approval. Thus, the president can use them to set
policy while avoiding public debate and opposition. Presidents have used executive orders to direct a
range of activities, including establishing migratory bird refuges; putting Japanese-Americans in
internment camps during World War II…
Historically, executive orders related to routine administrative matters and to the internal operations
of federal agencies... More recently, presidents have used executive orders to carry out legislative
policies and programs. As a result, the executive order has become a critical tool in presidential
policy making.
1. Close Reading: What is an executive order?
2. Close Reading: Based on information in the document, what is in the Constitution about executive order?
3. How does the information in this document help you answer the question, “Are executive privilege and
executive order Constitutional?”
Are executive privilege and executive order constitutional?
Document F
Source: Executive Order #9066, Issued Franklin D. Roosevelt, February 19, 1942.
Whereas the successful prosecution of the war requires every possible protection against espionage and
against sabotage to national defense materials, premises and utilities…
…I hereby authorize and direct the Secretary of War…to prescribe military areas…the right of any person to
enter, remain in, or leave shall be subject to whatever restrictions the Secretary or Military Commander
may impose. The Secretary of War is hereby authorized to provide for residents of any such
area…transportation, food, shelter, and other accommodations as may be necessary…
5. Contextualization: What was happening at the time Roosevelt issued the executive order?
6. Close Reading: What happened to Japanese Americans as a result of Roosevelt’s executive order?
7. Corroboration: Did Roosevelt’s order help to implement a federal law, constitutional provision or treaty?
8. How does this document help you answer the question, “Are executive privilege and executive order
Constitutional?”
Are executive privilege and executive order constitutional?
Document G
Source: Supreme Court Case Study 22: The Rights of People of Suspect Ethnic Backgrounds, Korematsu v. United States,
1944. Glencoe.
After the bombing of Pearl Harbor in December 1941 by Japanese planes, anti-Japanese sentiment on the
West Coast rose to hysterical proportions. All people of Japanese ancestry, even citizens of the United
States, were suspected of being pro-Japan, or worse—saboteurs and spies for Japan … President Franklin D.
Roosevelt issued an executive order that authorized the military to evacuate and relocate “all or any
persons”…to “war relocation centers”. The order affected approximately 112,000 persons of Japanese
ancestry, of whom about 70,000 were native-born American citizens…
Korematsu, a Japanese American citizen, refused to leave his home in California for a relocation camp. He
was convicted in federal court. His appeal to a United States circuit court failed, and he then brought the
case before the United States Supreme Court.
4. Corroboration: In what way does this document show checks and balances in action?
5. Close Reading: Why did Korematsu sue the US government?
6. How does this document help you to answer the question, “Are executive privilege and executive orders
Constitutional?”
Are executive privilege and executive order constitutional?
Document H
Source: Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June, 2012.
<http://www.streetlaw.org/en/Page/323/Key_Excerpts_from_the_Majority_Opinion>.
Mr. Justice Black delivered the following majority opinion (6-3) in Korematsu v. US
…It should be noted…that all legal restrictions which curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that
courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the
existence of such restrictions; racial antagonism never can...
…exclusion from a threatened area… has a definite and close relationship to the prevention of espionage
and sabotage….
…we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude
those of Japanese ancestry from the West Coast war area at the time they did. We uphold the exclusion
order as of the time it was made and when the petitioner violated it...
…To cast this case into outlines of racial prejudice, without reference to the real military dangers, which
were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because
of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because
the properly constituted military authorities feared an invasion of our West Coast and felt constrained to
take proper security measures, because they decided that the military urgency of the situation
demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and
finally, because Congress, reposing its confidence in this time of war in our military leaders — as
inevitably it must — determined that they should have the power to do just this. There was evidence of
disloyalty on the part of some, the military authorities considered that the need for action was great, and
time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that
at that time these actions were unjustified.
5. Corroboration: In what way does this document show checks and balances in action?
6. Close Reading: What did the Court rule in Korematsu v. US?
7. Close Reading: What does the ruling imply about the Constitutionality of Roosevelt’s executive order?
What does it imply about the Constitutionality of executive orders in general?
8.
How does this document help answer the question, “Are executive privilege and executive order
Constitutional?”
Are executive privilege and executive order constitutional?
Document I
Source: Landmark Cases. 2002. Street Law, Inc. and the Supreme Court Historical Society. 28 June, 2012.
<http://www.streetlaw.org/en/Page/324/Key_Excerpts_from_the_Dissenting_Opinion>.
Mr. Justice Murphy, delivered the following dissenting opinion (6-3) in Korematsu v. US:
. . . Being an obvious racial discrimination, the order deprives all those within its scope of the equal
protection of the laws as guaranteed by the Fifth Amendment. … In excommunicating them without
benefit of hearings, this order also deprives them of all their constitutional rights to procedural due
process…
. . . to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory
action against the entire group is to deny that under our system of law individual guilt is the sole basis
for deprivation of rights. …To give constitutional sanction to that inference in this case, however wellintentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest
of the rationales …
No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by
holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of
persons of German and Italian ancestry . . .
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree
has no justifiable part whatever in our democratic way of life. …
6. Corroboration: In what way does this document show checks and balances in action?
7. Close Reading: What arguments are given for disagreeing with the majority of the Court?
8. Close Reading: Does the Court rule on the Constitutionality of executive orders in general?
9. Corroboration: What protection does the Court provide if orders are discriminatory and thus
unconstitutional?
10. How does this document help to answer the question, “Are executive privilege and executive order
Constitutional?”
Are executive privilege and executive order constitutional?
Are executive privilege and executive order constitutional?
Write an essay that responds to the question “Is the use of executive privilege and executive order
Constitutional?”
Bucketing—Getting Ready to Write
Look over the documents and organize them into your final buckets. Write final bucket labels under each
bucket and place the letters of the documents in the buckets where they belong. It is OK to put a document
into more than one bucket. Remember, your buckets are going to become your body paragraphs.
Claim and baby claims
On the chickenfoot below, write your claim and baby claims. Your claim is always an opinion and answers the
Essential Question. The baby claims come from your bucket labels and list the topic areas you will examine in
order to prove your thesis.
Are executive privilege and executive order constitutional?
Outline Guide:
Paragraph #1
Grabber
Background with key terms defined
Claim and baby claims
Paragraph #2
Baby claim from bucket 1
Evidence:
Argument:
Paragraph #3
Baby claim from bucket 2
Evidence:
Argument:
Paragraph #4
Baby claim from bucket 3
Evidence:
Argument:
Paragraph #5
Counterclaim: Disprove what others may think of your claim
Paragraph #6
Conclusion: Restatement of claim and baby claims with fresh language
Synthesize paper with a statement about the power of the President and the system of checks and balances
Are executive privilege and executive order constitutional?