Constitutional Law - 4/4 Class 25 The Class discussion was centered on introducing Executive Power and setting up discussion of the Meyers case.

Transcription

1 Constitutional Law - 4/4 Class 25 The Class discussion was centered on introducing Executive Power and setting up discussion of the Meyers case. Executive Power- Core separation of power issue Con law that goes right down to the bone in terms of arguments and modes of reasoning. Same arguments today that you saw in first congress in 18 th century Very controversial, in a way particularly controversially. Core Idea- Separation of Powers Basic High School civic stuff, No one branch should have too much power. There should be another branch that holds another branch accountable. Keep the government from being oppressive. Federalist paper 51 President was designed to provide energy and initiative. To deal with crisis. Best to deal with short term crisis, I.E Terrorist attack, war, national defense. Need for unitary branch of government to deal with crisis. Executive Power is one of two issues in Constitutional Law I. 1. Scope of Congress 2. Executive Power President s power to use executive branch to carry out preferred policies or to act in times of emergencies. The President has inherent power. In relation to executive function The core fundamental question, Is the president a functionary who is supposed to run day to day business as directed by congress, or source of independent powers? Originalist argument on this question. Straightforward structural arguments More Presidential Power 1. Crisis Argument, President is only person with capacity to act swiftly in times of crisis. a. Independent power to deal with crisis 2. Mandate argument. President is only person elected by the entire country to represent the country as a whole. a. Centralized power can lead to too much power and tyranny.

2 i. President would lack institutional checks. In England, not immediately before revolution, but centuries before there was a debate over whether the King had a power over Parliament. There is a long standing fear of royal or executive prerogative that we get from British experience. Textual arguments that come up. Article 1. Article 2. All legislative powers Executive power should be vested in President Lack of Herein is where the textual argument lies. What is Executive Power? We have standards of textual interpretation. We view specifics as limitations. Why did we go on and babble on other things? Why would the framers need to be specific? Do we really need to say that one branch that has all the power needs to get reports from the other branches? A lot of the argument is messed around with by politics. The President has grown in power. This has happened through the collaboration of Congress. If congress delegates legislative power to President, can they oversee the individuals the President appoints? 3 Stances Most of the time the answer has been no. Be more careful. The issue is: If president has all executive power, why did framers specifically say obvious stuff like that s/he may demand writting reports from subordinate officials in the executive branch. If the framers felt the need to describe that power specifically, doesnt it cut against inferring broad implied power? 1. The President can fire officials whenever he wants 2. The President can fire officials with the approval of Congress

3 3. The President can t fire officials without approval of Congress. President has inherent power to fire executive officials. Hamilton Federalist 77 During G. Washington Presidency, France was in War with other nations. Washington issued neutrality statement. Washington threatened prosecution for any Americans that got involved. Arguments were made that inherent Executive Power didn t exist. Hamilton argues that Washington had power to issue that proclamation. Madison said that Washington did not have that power. Is declaring neutrality part of inherent executive power? Johnson tried to put brakes on reconstruction. Radical republicans tried restrain Johnson 10 year in office act Passed over Johnson Veto. Johnson broke that law, and Congress filed for impeachment. Was spared removal by one vote. Law was repealed several years later. Saturday Night Massacre- Art. 2 Sec. 3- Take Care Clause President will take care that the laws be faithfully executed. Some argue that this gives President Power to execute the laws notwithstanding that Congress hasn t authorized it. Lincoln used this to imprison some people without trial for the duration of the Civil War. Isolate 2 Ideas: Said the opposite Tenure in office act Well, used arguments based on the idea to justify it 1. Inherent Power 3 positions a. No Inherent Powers b. Construal We get the Presidents Power out of construal of text i. Read a necessary and proper clause into Article 2

4 c. Big Inherent Power President has non-textual power that comes with being the President. i. President needs this very broad authority 2. 3 ideas on the scope of that power in relation to other branches a. Only if Congress doesn t say no b. Negative Space idea President can do things only when Congress hasn t debated an idea. c. President has inherent powers against Congress i. President can do things that Congress has forbidden. Meyer Paragraph 49- Majority Opinion- Taft, who was also President. Strong originalist idea. What did Framers intend for Presidential Power? Benson was concerned with the courts reading of the clause, removable by the President First congress had an awareness of the future issues that their decisions might have. Why would that be the case? 1. People in the 1 st congress were also the Framers. a. Framers may have written the arguments, but the people voted on it. i. Public Meaning Originalism What did the people vote for

5 4/4/16 Scope of Executive Power Professor Gowder began class with a google image search of Obama memes -class off to a good start -executive power: core separation of powers issue -executive power goes right down to the bone in terms of arguments and modes of reasoning that we see in cases; we see the same arguments in today s cases about executive power as we did in 18 th century -very undecided and very controversial -focus on isolating the recurring arguments that come up; via Myers -moving into more settled areas of law next -in the next 2 weeks, we re going to be broken up into groups for an extended hypo exercise (to discuss out of class with groups, come up with arguments to present next week) -exercise in counting skills, happy to learn all most of us can count (this got confusing it s Monday) :-) separation of powers -basic: if one branch has to get consent from others before doing something, they might be prevented from doing bad stuff -Federalist 51 -tension between idea of checks and balances, and need for unitary branch of government that can deal with crises, is at the heart of controversy over executive power -Executive power is one of the two great controversies of Con Law I (other controversy: Congress s scope over the economy) -President s power to use the executive power to carry out his/her preferred policies, or to act in times of national emergency -president s inherent power: inherent to the executive function 1

6 -policy side/ core fundamental question: is the president merely a functionary whose job it is to carry out instructions of Congress? Or is the president a source of independent, substantial power, able to carry out an agenda independent of, or even contrary to, Congress? -normative and structural arguments as well -more presidential power (idea of president as an independent source of authority) Crisis argument: president is only person with the capacity to act swiftly in crisis, so we must confer independent power on president to deal with crises Simple mandate argument: president is the only person elected by the entire country, who is meant to represent the entire country -key arguments against centralized power can lead to too much power, particular worry for executive because executive lacks internal checks control over the military; fear of centralized executive power; ideas about avoiding the kind of executive prerogative that the framers saw in the British Crown before the revolution -prerogative idea: in England, before the revolution, debate over whether the King had a power above and beyond Parliament longstanding fear of royal or executive prerogative, source of fear since the framing -textual arguments as well subtle but big: Article I vests legislative powers in Congress herein granted o Article II: executive power vested in president o No herein granted Key feature in textual arguments regarding scope of power Those that think executive has inherent, unenumerated power: herein granted is a limitation for Congress How much should we read into herein granted? Maybe these two words indicate the difference between a branch with strictly enumerated powers and a branch with reserve unenumerated power Other side of argument: the founders did specify powers in Article II 2 o Read specifics as limitations on the general? o If president has all executive power, why were some powers specified? Textual ambiguity -political aspects as well -the president has grown in power, Congress has delegated immense powers to the executive in the course of creating the administrative state more history -historical sources necessary for understanding the debates -question: does the president have the power to fire executive officials, inherently, without needing it granted by congress -decision of 1789: the first Congress had endorsed theory that the president has the inherent power to fire executive officials -but it s unclear what the founders believed -Hamilton (Federalist 77): the Senate s power to consent to appointments also included power to consent to firings 2

7 -argument for proposition that this was an important power that led to greater stability in government -Hamilton suggested that the Senate could reject presidential firings -later Hamilton and Madison switched sides in a famous debate, during Washington s term Washington s Neutrality Proclamation was highly controversial Madison: attacks on presidential power, claiming there s no inherent executive power Hamilton: Washington had the inherent executive power to issue this proclamation serious disagreement over what s included in executive power -debates about termination of officials -debates about unilateral conduct of foreign affairs 2 nd great removal debate -removal power Andrew Johnson tried to exercise after assassination of Lincoln -Johnson tries to slow Reconstruction -radical republicans, in attempt to restrain president Johnson, enact tenure in office act criminalized executive s firing of officials without Senate s approval Johnson violated it, Congress responds with impeachment -Tenure in office act repealed later Saturday night massacre -Nixon fires a ton of people, including attorney general, deputy attorney general -controversy over the legitimacy of the president s power to fire people in department of justice Obama administration and DACA program -Constitutional challenge to expansion of this program -Texas and other states allege president violated administrative law, and that Congress (not president) has authority to create and implement such programs another textual note -2 nd source of president s power: Article II 3: take care clause -constraint on president? -or does it give the president power to execute the laws, notwithstanding the fact that Congress has granted it 2 conceptual ideas: 1. Inherent power: a. 3 possible positions i. no inherent power (president is limited to the terms of the enumerated powers in Article II) ii. construal inherent power (get the president s inherent power out of a broad construal of textual grants) (reads a necessary and proper clause into Article II) (even though Congress is granted that power and Congress is granted powers that are necessary and proper for other departments) iii. big inherent power (nontextual power rooted in the office, need for someone to exercise day to day sovereignty, like royal prerogative idea) 2. Scope of that power, relative to other branches, particularly congress 3

8 a. 3 possible positions i. Only if Congress doesn t say no (if Congress refuses to authorize something, or if Congress forbids something, then the president can t do it; if Congress fails to authorize or forbid something, maybe the president can do it) ii. Negative space idea iii. President has inherent power against Congress (president can do things that Congress has actively forbidden) Myers v. US (1926) Background info: -draw out the arguments the court deployed -dirtiness of con law: Taft writing opinion about broad presidential power -court goes into actions of first Congress -strong originalist work; inferring propositions about scope of executive power by looking back to first Congress -decision of 1789; to be removable by the president, objection (by Benson) that this clause is being read incorrectly -Benson concerned that the removal power was act of legislative grace rather than inherent executive right -first Congress had awareness of future importance of this decision - public meaning Originalism rather than framers meaning Originalism What we really care about is what the people would ve thought -key justification: not as if framers were acting in a vacuum Good! 4

9 Outline for April 4, 2016 Myers v. United States Facts: Myers was a former postmaster of the first class who was appointed in 1917 by the President for a term of four years. In early 1920, Meyer s resignation was demanded and when Myer s refused, he was removed by the Postmaster General at the direction of the President. Procedural History: Court of Claims rejected a claim for the postmaster s salary when he was removed from office before the end of his term. Postmaster s estate appealed on the basis that order sanctioned by the President had been down without Senate approval. Holding: President had the power to remove the postmaster from his appointment without the approval of the Senate. Reasoning: Historical and textual analysis concluding that the President has the power to remove on inherent power that he gets from the ability to appoint executive officials. Absent a constitutional or statutory provision specifically stating otherwise, the President can remove executive officials. Class notes Core ideas Idea that if any branch of government has to get consent, if prevents them from doing nasty stuff Executive Power o Three branches are elected in different ways o Helps balance out special interest groups influence o Will keep the government from being oppressive Tension of presidential power- Role is inherently different as it is one individual who deals with crisis that could lead the nation to potential injury One of the great controversies in Conlaw- Presidents power to use the executive branch to carry out their duty Questions of Executive power o Is the president merely a functionary whose job it is to carry out Congress s instruction and execute a small section of specifically enumerated power? o Or is the president the holder of significant power that can confront what Congress has done in addition to executing enumerated powers? Sides of the executive power argument More power o Crisis argument- President is only person with capacity to act swiftly so should at least confer independent power

10 Less power Textual arguments o Simple mandate- President is only person elected by the whole country o Centralized power concern Too much power in one place can lead to tyranny, limited internal checks for the executive Requiring statutory approval helps to prevent overuse of executive prerogative o Executive prerogative concerns Historical background- English royal prerogative that was extensive and fearsome that led to revolution Long standing fear because of the British experience Article 1 vests Legislative power and Article 2 vests President Enumeration vs inherent textual argument o Those that think enumerative/inherent o Other side Herein granted in A1 is limitation for Congress as compared to President Section 2, A2 does list quite a bit of powers for the president If the president was given all the executive power, why did they have to list powers and why would the president have to ask for for opinion of others in writing? Constraint vs allowance textual argument o Inherent power allegedly- he shall take care that the laws be faithfully executed o Some see as a constraint- President can t systematically refuse as that wouldn t be taking care o Others think it gives power for the President to choose the means to execute the laws and to give the power to himself to execute not withstanding Congress Political issue related to executive power The bipartisan system can often to lead to limitations/granting of executive power depending on who controls Congress or the Oval Historically changes to executive power o President has grown in power o Collaboration with Congress as Congress has delegated to President much of the administrative state

11 Done through executive officials doing administrative business and they report to the President Debates throughout history regarding executive power Does the president have the inherent power to fire executive officials? 3 basic positions o Can fire no matter Congress says o Fire only if congress doesn t say no o Fire only if explicit permission of Congress 1 st debate- First Congress o Decision of Endorsed the theory that President has the inherent power to fire executive officials o Hamilton in Federalist 77 claimed that Senate s power to appoint also included the power to fire 2 nd great removal debate Madison and Hamilton had a very serious disagreement about just what executive power was and the two flopped positions o Andrew Johnson- southern democrat and when he assumed the presidency after Lincoln died, he tried to reverse reconstruction o Enactment of tenure of office act by Congress Criminalized the president firing of officials without the Senate approval Ultimately repealed several presidents later o Nixon and his Saturday night massacre Nixon fired top level of Justice Department (spoiler alert: who just happened to be investigating Nixon for his possible crimes) Led to mass amount of controversy over President power o Obama administration Deferred Action for Childhood Arrivals Administration has declined to enforce the law 2 conceptual ideas to Presidential power inherent power: 3 possible positions o no inherent power- strictly limited to terms of enumerated powers o construal inherent power- get the inherent power out of a broad construal of presidents powers necessary and proper clause read into A2 but this seems shaky as if strictly read it seems like Congress has the decision on how Presidents power should be read into

12 o Big inherent power- President has non textual power rooted in the nature of the office as someone needs to exercise day to day sovereignty for the country as a whole Scope of power relative to other branches (particularly Congress) o Only if Congress doesn t say no If Congress refuses to authorize or forbids, then President can t do If Congress fails to forbid/authorize, the president can do o Negative space - President can do things when Congress hasn t considered the question o power against Congress- can do things Congress has actively forbidden Meyers v. United States Taft wrote majority opinion Section 49 o He was president before being a Supreme Court Justice o Should raise your eyebrows because as if he was going to decide against the president having the power Court starts going into careful parsing of the First Congress actions o Originalist argument to infer presidential power from what the First Congress debated on Benson worries that it would would be read as Congressional grace rather then executive inherent right o First congress had an awareness of how their action would be interpreted and that its decisions would be have precedential force What is relevance of First Congress Framers- many of the First Congress were Framers o if we want to know what they thought about the terms of the Constitution, we should look at what they did in Congress First Congress original issue o Framers were not acting in a vacuum as they were elected to Congress and to speak for the people o What the Framers thought was relevant for what the people may have thought= public meaning originalism.

13 April 5, 2016 Class Discussion Federalist No. 77 The consent of the Senate would be necessary to appoint and displace. The Constitution should be ratified to promote stability of the government. A new President cannot enter office and drastically alter everything. The Senate must affirmatively consent to any firing, just as they must do for appointments. This stance is the opposite of the determination of the First Congress. (see Para. 64 of Myers v. United States) In Myers, is the Court considering whether the President can fire an official without the Senate s consent, or is this a sub-issue? President is attempting to remove a postmaster. The Constitution says Congress is in charge of regulating the firing of postmasters with the advice of the Senate. (Para. 21)????????????? Question 1: Assuming Congress hasn t legislated on the matter, may the President remove an official that they have appointed without congressional consent? Question 2: Suppose Congress has legislated, does that change whether or not the President has the power to remove an official they have appointed without congressional consent? Therefore, does the Necessary and Proper Clause grant Congress the authority to determine how removals are conducted? Does Congress have the authority to take this power away from the President? The power granted to Congress under N&P is broad, and an argument can be made that the Clause gives Congress the right to have a say in removals. Good! What about the Take Care Clause? Is this Clause a duty or a power that is granted to the President? Good! Good! Para. 66 of Myers v. United States Core separation of powers argument. However, how do we know whether removing officers is an executive or legislative function? o Executive Power: to be efficient, the President is best suited to control this matter. These officials take their orders from the President on the day-to-day. These officials work under the President and therefore he should be able to solely control their removal. If the President has to get congressional approval, he really cannot exercise his proper Good!

14 authority over the officials under his command. Congress only stands to impede the power of the President in this sense. o Legislative Power: efficiency cannot be the only goal; the Constitution was also designed to prevent tyranny. Congress was intended to have a role in this area, the President otherwise has free range to do as he pleases. We want to separate the powers, but the anti-tyranny concern highlights another goal of the framers. Requiring Congress to consent to removals is a greater burden than requiring Congress to consent to appointments. The President has a large list of potential people he can appoint, and will therefore have an acceptable choice. However, if the President has an official in office that he believes is unacceptable, he may be saddled to the official beyond his control. The Enumerated Powers Argument The Constitution is specific as to how Congress can be involved in the business of appointments of inferior officers. (Para. 276) If Congress has the authority to vest the appointment, then Congress also vests the removal incidentally. (Para. 278) However, if Congress is given this greater authority, doesn t that allow Congress to greatly impede the purpose of the executive? The removal power is apart of the executive, and the Court holds on to a part this idea. There is a specific provision that gives Congress the power to have a say in appointments (advice and consent, and inferior officers). These provisions are limitations on what Congress can do. It should be inferred that this is also Congress can do within this field. Should it be implied that there are other congressional checks? If Congress wants to separate an official from the control of the government, they must do so entirely (and not just for appointments). A, 100% or 0%, argument. Myers Dissent Para. 371 N&P Clause Appeal: textually speaking, it seems like Congress has the power to regulate removals along with appointments. Para. 386 The President has the duty to see that the laws are executed. But why should we think that Congress having a hand in removals would be a burden on the executive? Why do we assume that the President is responsible, but that Congress is irresponsible? Para. 406

15 Executing the laws fundamentally means doing what the legislature requires. Therefore, the executive power must be subordinate to Congress, because the executive branch is just carrying out what the legislative branch has commanded. Is giving Congress a check on the executive the opposite of a separation of powers? Myers is not a case that has been discussed for its doctrinal purposes. Myers does a good job of helping us understand the types of arguments that surround these issues. First Congress didn t want to imply that the President didn t already have this power on his own. Myers v. United States (Brief) 272 U.S. 52 October 25, 1926 Facts: President Woodrow Wilson removed Myers, a postmaster first class, without Senate approval. However, Wilson s action was in conflict with an 1876 law that stated that postmasters could only be appointed and removed by the President when he had the advice and consent of the Senate. Issue: The question before the Court was whether or not the 1876 law was unconstitutional in its restriction of the President s power. Holding: The Court found that the 1876 was indeed unconstitutional, as it violated the separation of powers between the executive and legislative. Therefore, the President held the exclusive authority to remove officials from their positions. Reasoning (Majority): Very good, except for the bit with the question marks :-) Core Separation of Powers Argument: the very purpose of the Constitution was the separation of power, and therefore it is the President s function to remove officers by his own accord, without the influence of the other branches. The President s role is to execute the laws passed by Congress, and therefore, he should be allowed to determine who acts under his direction in the execution of the laws. The President cannot execute the laws on his own, so he must have control over those who help him in this role. Requiring Congress to consent to a removal is a greater burden than requiring Congress to consent to appointments. Enumerated Powers Argument: the Constitution specifically set out how Congress can be involved in appointments of inferior officers, and because Congress has

16 vested the power of appointment, the power of removal in the President is incidental. The Court believes that by its very nature, the power to remove is therefore an executive power. Congressional power on appointment is provided in specific provisions (advice and consent). These provisions are limitations on what Congress can do, and Congress should not be allowed to go beyond this within the particular field. Reasoning (Dissent): Necessary and Proper Clause Argument: Congress should have the power to regulate removals along with appointments, based on a look at the text of the Constitution s N&P Clause. Congress has the right to do whatever is necessary to make sure the laws it creates are properly carried out. See paragraph 371. Congressional Capabilities Argument: we see here another example of the argument, anything the President can do, Congress can do just as well. There is no reason to think that the President is capable of handling removals, but if the duty was put into the hands of Congress, that Congress would fail. Congress is not irresponsible; they are just as well suited to consider removals. See paragraph 386. Congressional Authority Argument: executing the laws is essentially just doing what the legislature requires. In this sense, the executive power is subordinate to the legislative power of Congress. The executive s duty is to carry out what the legislature has commanded. See paragraph 406. My Personal Notes From Myers v. United States Whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate. Madison s arguments: The very purpose of the Constitution was the separation of such powers, and therefore it is the President s function to remove officers individually, without the influence of the other branches. (66-69) It is the role of the President to execute the laws (as he is the executive branch) and therefore, he should be allowed to select who acts under his direction in the execution of the laws. The President certainly does not execute the laws alone, so he must have control over those who do his bidding. (75) In the British system, the crown was charged with the executive power, granting the power to appoint and remove executive officers, it

17 was therefore natural to think that the executive power in the Constitution included the same. (78) The power of the legislature to check the executive s power to appoint limits only that, and not the power to remove. The intended purpose was to provide control over the appointment process, but this suggests that there was no desire to limit removals. The power of removal is different in nature from that of appointment, although the two are related. The power to have a say in removals is a much greater limitation. (83) One fear was that the President may exercise his power in opposition of the people, but the President is a representative of the people, and is sometimes more representative of them as a whole than members of the legislature. (95) An argument posed against allowing the President the sole right to remove officers is that absent an express grant of such power, the Senate then holds the power under Section 8 of Article I. (109) However, if this interpretation was permitted, the legislature would have greatly expansive power to exclude the President from removal altogether if they chose. Removal is the necessary incident of appointment. Congress is explicitly given a role in appointment, and expressly given a role in appointment and removal of such inferior officers. Therefore it may follow that the removal of certain officers was intentionally excluded from the rights given to Congress. The executive power to remove is left unaffected by this implication. (112) It was not intended that Congress be left this discretion which could seriously weaken the power of the executive, and blend the two sources of power together. (118) If this power was intended to be given to Congress, it would have been done so expressly in the enumerated powers of Article 1, or the specified limitations on the executive power in Article 2. Is it correct to say that the power does not belong to the executive until Congress so vests it? Congress creates the judicial power in this way, but at the moment an office and its powers are created, the

18 power of appointment and removal, as limited by the Constitution, vests in the executive. (130) When Congress by law vests the appointment of inferior officers in the heads of departments it may limit and restrict the power of removal as it deems best for the public interest. The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power. By Article 2, Congress only holds the power to appoint and remove as it is granted within the Constitution. Therefore, Congress still controls the matter of inferior offices, and not to appoint and remove other offices. (283) This is an attempt to curtail the powers of the President, to redistribute the powers divided up in the Constitution, and destroy the principle of executive responsibility. The separation of powers is eroding. (307) If the President has his officials forced upon him, even after he chosen to suspend that person, should the President be forced to continue to have that official work for him? (311) The provision of the law of 1876 which attempts to restrict the President is his power to remove officers under his command is in violation of the Constitution and therefore invalid. DISSENT There is no such thing as inherent power granted in the President. The United States government is one of limited and enumerated powers. It is the legislature s job to enact laws, and prescribe rules for the regulation of society, while the execution of those laws is left to the executive. Therefore, the question is, is creating post offices, prescribing qualifications, duties, compensation and term, may the legislature protect the officer is his enjoyment of his term. Where is the limit drawn on Congress s power.

19 Congress has consistently asserted its power to prescribe conditions concerning the removal of inferior officers. The provision be subject to the direction of the President of the United States in performing the duties of his office, was eliminated in the Act of 1792, establishing roles, duties, etc. of the Postmaster General. (418) The dissent maintains that the framers never supposed orderly government required the President either to appoint or to remove postmasters. For 47 years, the President did not hold this right until the 1836 Act granted it. Congress may authorize both appointment and removal of all inferior officers without regard to the President s wishes; even in direction opposition to them. And the dissent makes the distinct that this is why Congress should have the final say on the Postmaster in this case. Congress may have believed that the power to remove was held by both President and Congress, when they originally voted, because both had the power to appoint. Was it implied that the power to appoint with consent also entailed the power to remove with consent? The idea of illimitable presidential power. The dissent believes that this would be the first time that the President s power will be extended in this way (by inference) and that previous congressional interpretation has been expressly oppositional to the current position. (465) The argument is essentially that the history surrounding this issue does not favor what the majority has concluded in the present case. Certain powers granted in the Act suggest that the President was not to be given an illimitable executive power, as was granted here today. Provisions in the Ordinance of 1787 gave the President and Congress a shared power in removal of governors. This directly contradicts the now held contention that only the President holds this power. When the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. (Marbury)

20 An affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended. (574)

21 Day 26 First, we started off class breaking off into groups for a group hypothetical we are going to work on outside of class for the next couple of weeks, and will present in class. Core Idea of Separation of Powers Federalist Paper 51 Checks and balances of power between the three branches of government. This will keep the government from being oppressive. Tension between the checks and balances and the need for a unitary government to deal with national crisis is at the heart of the controversy of Executive power. Executive Power Strong Independent Power in the President [centralized power] Key Arguments Crisis Argument President is the only person to act swiftly in terms of crisis. Mandate Requirement the President is the only elected official that is elected to represent all people. Arguments Against Executive lacks internal checks. Requiring statutory authorization for everything the President does acts as a check against ultimate power in the President. Prerogative Argument Didn t want the President to become like the King of England. Long-standing fear of Royal Prerogative. Article I, 1 v. Article II, 1 Article I, 1 All legislative powers herein granted shall be vested in a Congress Article II, 1 The executive power shall be vested in a President Argument Article I, 1 the herein granted is a limitation on Congress power, and since Article II, 1 doesn t have herein granted all executive power is vested in the President. Counterargument The Constitution does have a list of powers in Article II, 2. If the President has all the executive power, then we wouldn t need this specific list of powers in Article II, 2. Congress has delegated a lot of power to the President to set up the administrative state. Does the President have the inherent power to fire executive officials? Framers Madison endorsed the the position that the President has the inherent power to fire executive officials.

22 Hamilton Federalist 77 Senates power to confirm appointments also includes the Senate s power to confirm [or reject] firings. Later [during George Washington s term], in a debate between Madison and Hamilton, both of them switched sides on this issue. Both Madison and Hamilton agreed that there was such a thing as inherent executive power, but they sharply disagreed on what was included in the inherent executive power. President Andrew Johnson Tenure of Office Act [restricting Johnson's ability to fire Cabinet officials] President Johnson blatantly ignored the Tenure of Office Act when he fired Secretary of War, Edwin Stanton. Congress response was to try and impeach Johnson but it was unsuccessful. Tenure of Office Act has since been repealed. Take Care Clause of Article II, 3 he shall take care that the laws be faithfully executed Argument for Inherent Power President can choose the means to executive the laws; notwithstanding the fact that Congress hasn t authorized it. Three Possible Positions on Inherent Power (1.) There is not inherent power President is strictly limited to the terms in Article II, 2. (2.) Construal Inherent Power We get the President s inherent power from a broad construal of expressed Presidential power. This position would read a Necessary and Proper Clause into Article II. (3.) Big Inherent Power Proposition that the President has non-textual power rooted in the office of the Executive to deal with the day to day. Three Possible Positions on the Scope of that Power relative to other branches (particularly to Congress) (1.) Only if Congress doesn t say no If Congress refuses to authorize something or forbids something, then the President cannot do it. If Congress fails to authorize/forbid something, then maybe the President can do it. (2.) Negative Space President can do things if Congress hasn t done anything. (3.) President has Inherent Power, or some inherent power, against Congress President can do things even if Congress has forbidden it. Myers v. United States [Majority opinion written by Former President Taft] 49 Actions of the First Congress [strong Originalist argument] Mr. Benson was concerned with the clause to be removable by the President in the President meant that the power to remove by the President wasn t inherent but was delegated by Congress to the President. Mr. Benson argued that this clause should be stricken.

23 First Congress had many of the same individuals that participated in drafting the Constitution. Actions by the First Congress could give insight into what the Framers were thinking.

24 Outline 5 APRIL 2016 Myers v. United States, Professor Gowder Edits Part I: Case Briefs Facts: An appointed postmaster, first class, in Oregon was forced to resign by the Postmaster General, acting under authority of the President. Procedural History: Myers brought suit under a statute (the Tenure of Office Act) providing that removal of postmasters was to be done with the advice and consent of the Senate. The Court of Claims (now both the Federal Circuit and the Court of Federal Claims) ruled for the government. Myers appealed; Supreme Court affirmed. Holding: The Tenure of Office Act is unconstitutional because it prevents the President from removing executive officers by himself. Future acts with the same effect will be unconstitutional as well. Arguments: Majority: The tenure of office act was the old Johnson thing, this was a specific act about postmasters 1) Discussions among the framers indicate intent to make the removal power for the President alone. Specific actions, such as amending language regarding the removal power, and discussions surrounding it, imply removal in the President alone for fear of legislative instability. 2) The Executive and Legislative branches are supposed to be separate. Because great power was vested in the President, and because the President would need subordinates to exercise that power, the President alone should be in charge of picking and removing the people he wants to work with. The Senate needed to have a check, and so appointment approval made sense; removal, however, tended to blend the executive and legislature instead of keeping them separate as intended. Challenges to that viewpoint, such as that it may make the President a tyrant, or that regulation of vesting of appointments would solve the issue, were rejected by the Congress, and should be similarly treated by the court analyzing the issue today. 3) Hamilton changed his mind. Although Hamilton argued that the power of removal should be with the advice and consent of the Senate, he changed his position, indicative of the force of the arguments presented in favor of vesting the President with the sole power.

25 Dissent (McReynolds): 1) The President should not be able to simply ignore Congressional laws, because his power is appurtenant to that of Congress, who regulates. Furthermore, the President s duty to enforce laws means he shouldn t break them himself. Even further, the postal system has functioned for a long enough time without the President even being able to remove postmasters that the theory of necessity to enforce laws seems meaningless. 2) The Government consists of enumerated powers; permitting the President to remove officers without Congressional consent lacks a limiting principle and may allow future executive powers unconstrained by such an expansive reading of the Constitution. Further, Congress should be assumed to act properly and to not constrain the executive in any meaningful way. Their regulation of presidential acts is a necessary part of their job. 3) Marbury v Madison and actions of the previous Congresses, namely, the act of ensuring to always include a removal power within their legislation, suggest that removal must be with the Senate s power. Specifically, if removal is at the whim of an executive, no legal right to a job exists, but the Court decided a legal right in Marbury v. Madison, indicating removal being within the purview of the Senate. Dissent (Brandeis): Separation of powers functions to prevent tyranny, and not for the promotion of efficiency. Further, Hamilton provides in Federalist #77 that removal should require Senate approval, and silence from the First Congress should not count as evidence on the topic of removal. Youngstown Sheet and Tube Co. v. Sawyer [The Steel Seizure Case], pp Facts: In 1952, steel mills threatened to shut down and strike. President Truman ordered his Secretary of Commerce to seize the mills to continue production for the war effort. Procedural History: The mill employees union sued to enjoin the President in the District Court for the District of Columbia. The District Court granted the injunction, but the Appeals Court for the District of Columbia stayed the injunction. The Supreme Court granted certiorari and affirmed the injunction. Holding: The President lacks the authority to direct seizure of steel mills, even if for national defense. Arguments:

26 Majority 1 (Black): A President s power must come from either Congress, or the Constitution. No seizure provisions were provided for steel mills under existing legislation. Therefore, the Constitution must authorize the action, but no such provision exists. The position of Commander-in-Chief or grants of faithful execution of laws do not explicitly give the power of seizure, and thus must be rejected. Further, the President s seizure is on his terms, not Congress, and any previous actions do not justify usurping Congress authority. Concurrence (Frankfurter): Congress did not authorize seizure, but rather prohibited it in the Taft-Hartley Act. Specifically, Congress said, You may not seize. Please report to us and ask for seizure power. In the absence of Congressional authorization, the only way to obtain power to act is with a systematic, unbroken executive practice never before questioned, engaged in by Presidents, making it part of the structure of government. The gloss on executive Power theory does not give the President seizure power, however, because it had only been done in a few instances, which does not count as acquiescence by Congress. Concurrence (Jackson): The fluctuation of Presidential powers necessitates a grouping approach: 1) The President acts with express/implied authorization by Congress. Here, the President has all of his powers, plus those authorized, and thus he has maximum authority. The only way this is unconstitutional is if the whole government lacks the purported power. This grouping is entitled to strong presumptions of validity. 2) The Zone of Twilight - in the absence of approval or denial, the President may rely only on his own powers. The test of power depends on the facts of any scenario 3) When the President goes against Congress will, he can only use his powers as constrained by Congress. Scrutiny and caution are warranted; Congress must be found to exceed their powers in order to find for the President. Jackson further argues that the steel seizure falls under the third grouping, because Congress passed the Taft-Hartley Act to prohibit seizures. Jackson also rejects the executive vesting clause because it would have enumerated seizure as a power; rejects the War Powers clause because to be a Commander of the Armed Forces does not imply maintenance, as that power is given to Congress; and last rejects the notion of inherent powers because Congress can act if it so chooses, and otherwise giving the President authority results in a wide expansion of Presidential power.

27 Concurrence (Douglas): The seizure constitutes a regulatory taking under the Fifth Amendment. Because compensation is due, and the President cannot raise money, only Congress has the power to seize the steel mills. Concurrence (Burton): Presidential action is unwarranted because it invades Congress authority, as Congress had already legislated on the procedures for emergency situations (which were not followed). Concurrence (Clark): Congress methods for action were not followed. Despite that fact, the President s power to act depends on how severe the emergency is. Dissent: The President s duty to execute laws related to the Korean War necessitates good steel pricing, and thus, seizure of mills if they will shut down. Past Executives have seized as well, such as when Roosevelt seized aviation plants. Because such action occurred in the absence of statutory authorization, Truman s act should be seen as similarly legitimate. Furthermore, the President intended to abide by Congress rules and to not seek unlimited power. Rather, the ill of inaction, that is, playing messenger-boy while the programs underpinning Korea are destroyed, is worse than any temporary occupation that could be regulated upon return to their owners.

28 Part II: In-Class Discussion Federalist #77 Discussion: Hamilton argues that the consent of the Senate for firing and appointing is necessary to government stability to prevent incoming Presidents from simply sacking the previous appointees. The consent of that body would ne necessary to displace as well as to appoint. 1. This train of thought appears to be the opposite conclusion of the first Congress (para. 64 in Myers v. United States, Presidents constitutional power of removal independently of congressional provision were masterly ) a. Suggests that the views of the Framers changed between the Federalist Papers and the First Congress, or, that there was some confusion Myers v United States Discussion: The Constitution is at issue, because it may grant the power to regulate the firing of officials, but also at issue is a statute which provided that removal of postmasters required the advice and consent of the Senate. This is a different issue than the one found in Federalist 77. Distinguish: 1. Assuming that Congress hasn t legislated, may the President fire an appointee without consent of the Senate? 2. Assuming Congress HAS legislated, may the President fire an appointee without consent of the Senate? (The focus in Myers). a. Argument: Congress can use the Necessary and Proper Clause to regulate the Government; in this case, because they appoint, the NP clause also allows them to be consented for dismissal i. If this were true, it would mean that even if the argument in Myers were correct (that the president has inherent firing authority) that the Congress could simply take it away from him (maybe her, someday). ii. Necessary and Proper vs. Take Care 1. NP is incredibly broad and applies to everyone as a power 2. Take Care is phrased as a duty, not a power

29 Dissecting The Arguments: Constitutional Theory Separation of Powers Enumerated Powers Arguments For 1. Constitution tries to separate legislative and executive functions 2. Removal is an Executive power because it is required to run the Government. Otherwise, an inability to fire people impedes efficiency/function 3. Relative burdens. The burden of consulting Congress for firing is much greater than that of hiring; framers only intended for Sep. of Powers to check appointments. For example, when hiring, the President can keep trying appointees until the Senate relents, but when firing, if the Senate says no there are no doovers and the President is stuck. Further, a spirit of Separation of Powers exists because the Senate gets to control the executive branch by regulating who gets to fill the recently opened position. 1. The Constitution does specify a way that Congress can regulate appointments and removals. Paragraph 276. Specifically, Congress can make the appointment of inferior officers vested, thus following that firing can be vested in someone else as well. Paragraph 278. This only applies, however, when Congress actually does that, which didn t happen here. Arguments Against 1. Power of removal is not an Executive function. 2. Constitution is not meant solely to promote efficiency. Checks and balances are necessary to prevent the Nixons and Johnsons from being tyrants. For example, should a hypothetical Donald Trump be able to sack military officials who won t torture people? Probably not. 1. There isn t a strict separation of legislative and executive functions, as indicated by the text allowing Congress to vest appointments and firing. Because of that fact, it would follow that Congress should be able to have a say in the removal process irrespective of whether it was vested. **What it Comes Down to**: The Removal Clause is quite simply only in the purview of the Executive. See Paragraph 121: The difference between the grant of legislative power which is limited to powers therein, and the more general grant of the executive power, is significant