CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #18

Chapter 7. SEPARATION OF POWERS

  1. The President's Power to Determine National Policy
    1. In General

YOUNGSTOWN SHEET & TUBE CO. V. SAWYER. p. 393 (1952)

  • what executive action is being challenged, and what was its purpose?
  • what executive powers are invoked to support the action?
  • what had Congress done relating to the claimed power?
    • were legislative and executive branches in active conflict over the issue?
    • if so, what rationale would sustain the president's action?
      • is the congressional action within its power?
      • if so, is the president bound by it?
    • if not, on what rationale is the President's action invalid?
  • in what sense is the scope of the President's power subject to the control of Congress?
    • is there a uniquely executive power to act in emergencies, not regulable by Congress and not reviewable by the courts? vestiture clauses in Arts. I, II, III?
    • If so, was this an appropriate occasion for exercising it?

b. International Relations

Dames & Moore v. Regan, p. 399 (1981)

  • what executive action is being challenged, and what was its purpose?
  • what executive powers are invoked in support of the action?
  • what was the position of Congress with respect to the action in question?
    • suppose Congress, while negotiations were going on with the Iranians, had passed a law prohibiting the President from settling the claims for any amount less than 95% of their value, or from removing any claim from the jurisdiction of a domestic U.S. court -- and had overridden the President's veto. Would the decision have been different?
  • what was the position of Congress with respect to the general power invoked?
  • Is the case distinguishable from Youngstown?

c. War and National Defense

THE PRIZE CASES, p. 400 (1863).

  • what presidential act is being challenged?
  • what is the source of authority claimed for the President?
  • can there be such a thing as an "undeclared war"?

MORA V. McNAMARA, p. 402 (1967).

  • what presidential act is being challenged? did the Supreme Court resolve the challenge?
  • are the questions posed by Justice Stewart in dissent justiciable?

HAMDI V. RUMSFELD, p. 404 (2004)

·        Has Congress authorized the detention of a U.S. citizen as an “enemy combatant”, by adopting the Authorization to Use Military Force resolution of 9/2001?

·        Has Congress authorized detention incommunicado and indefinitely on U.S. soil, without opportunity to contest the grounds of his detention?

·        Does the President have the power to order such a detention without Congressional authorization?