Unformatted text preview: Chapter 4 The Executive Article II Basic Considerations. Structure selection, removal, tenure, and succession The Electoral College gave general electorate some influence on the selection of President w/o resorting to direct popular electing. Each state to select presidential electors equal in nm et te te dl a so h Sntad u bro h s ts e gt t te ea n a' e e e House Constitution empowered the state legislatures to decide the method of choosing electors. Three qualifications citizenship, age and residency. Only natural-born citizens natural 35 years old Resident of U.S. for past 14 years 12th Amendment No person can serve as VP who is not eligible to be President Electoral College each elector had two votes, only one which could be for someone from his own state 2nd place became vp If no candidate received the required majority, the House was to decide among the top five finishers in the Electoral College with each state delegation getting one vote Bush v. Gore (2000) Relevant Case Facts: The presidential election of 2000 came down to 250 votes between George W. Bush and Vice President Al Gore after an automatic machine recount was triggered. Charges of voting irregularities led to lawsuits and protests. The major issue of debate was over undercounted ballots, whereby voting machines had failed to register a presidential preference. Gore supporters asked for a hand recount of these ballots. Bush v. Gore (2000) However, three deadlines were on the horizon: November 18 (when the secretary of state would certify the election results); December 12 (the safe harbor deadline); and December 18 (when electors would cast their votes). The recount was not going to be done by November 18, and the Florida Supreme Court extended the certification date until November 26. The U.S. Supreme Court set aside this decision and asked the Florida court to explain its decision. Bush v. Gore (2000) Meanwhile, the secretary of state certified the election results on November 26 (with Bush winning by 537 votes). Again, the state supreme court spoke, and ruled in favor of a statewide manual recount. Bush appealed this decision to the U.S. Supreme Court. Bush v. Gore (2000) Legal Question: Did the Florida Supreme Court violate the Equal Protection Clause of the Fourteenth Amendment when it ordered a recount to take place without setting a single uniform standard for determining voter intent? Yes. By a vote of 5 the Court 5 4 determined that the Florida court violated federal law and the Equal Protection Clause. Holding: Bush v. Gore (2000) Reasoning: The right to vote is protected, as is the manner in which the exercise is carried out, by the Equal Protection Clause of the Fourteenth Amendment. A state may not, by later arbitrary treatment, value one pr n vtoeaohr e o' oe vrnte s s . Bush v. Gore (2000) Based on the controversy surrounding under votes, the Florida Supreme Court ordered that the intent of voters be discerned from ballots that had been perforated but not enough for the voting machines to count them. The recount mechanisms used for this determination did not satisfy the nonarbitrary treatment of voters necessary to secure this fundamental right. The problem is that there are no standards to determine voter intent. Bush v. Gore (2000) The lack of standards and rules leads to unequal evaluation of ballots. Additionally, the standards vary from locale to locale. recount of overvotes raises another equal protection issue, and this demonstrates the problem wt te l i cut dci . i h F r a ors eio h od ' sn The Bush v. Gore (2000)
A third equal protection problem ensued from the fact that only a partial total of the votes from MiamiMiamiDade were certified. The press of time did not diminish constitutional concern--equal protection concern--equal must still be followed. overall recount process is inconsistent with the minimum procedures necessary to protect the fundamental rights of each voter. The Bush v. Gore (2000) Gvn ht eieo " f hr r i p n s i tat t fr s e a o"s o u, e h m a- b u with no viable recount procedure in place, we order that the recount remain stopped. We are cognizant of limits on judicial power, but we were asked by the parties to decide this dispute, so we must do so. Bush v. Gore (2000)
Dissents/Concurrences: (Rehnquist, with Scalia and Thomas, concurring): While comity and respect for federalism usually mean the Court defers to state court decisions over matters of state law, the significant departure from the legislative scheme for appointing electors in this case raises a federal issue. This does not imply disrespect for state courts, but rather a respect for the constitutionally mandated duty of state legislatures. Bush v. Gore (2000) (Stevens, with Ginsburg and Breyer, dissenting): It is the settled practice of this Court to defer to the decisions of the state high court. While some issues do merit federal intervention this is not one of those cases. Federal judges cannot substitute their view for those of the state court on matters of state law. Any problems with different standards for counting ballots are alleviated by the fact that a single, independent, magistrate adjudicates all objections about the recount. Bush v. Gore (2000) Once a state legislature determines to select electors through popular vote, then everyone has the right to have their votes counted. T eoeit s a i h nt n cn dne h l rn h cs s e ao' of ec s i e t i s i in judges as impartial guardians of the law. Bush v. Gore (2000) (Souter, with Breyer, Stevens, and Ginsburg, dissenting on all but issue three): The safe harbor issue is not mandated by law, and even if a determination has to be made about the validity of ballots, it must be made in Congress, not by the Court. The decisions and interpretation of the state supreme court raise no substantial question under Article II. Bush v. Gore (2000) The third issue has merit. There may be equal protection problems with having disparate standards for interpreting the meaning of ballots. However, the time should be taken to create a uniform standard. There is no reason to assume that the state could not conduct the recount on time. Bush v. Gore (2000) (Ginsburg, with Stevens, Souter, and Breyer, dissenting on all but the equal protection portion): Disagreement with the state court decision does not warrant the conclusion the majority draws. This Court has rarely ever rejected outright interpretation of a state high court on matters of state law. But those cases are not comparable to the conditions we have today. Bush v. Gore (2000) Federal courts should defer to state courts on matters of state law. harbor does not mean that electoral votes cannot be delivered. And, they have to count the votes unless both houses find the votes had not been regularly given. THAT GINSBURG DOES NOT " E P C F L YD SE . R S E T U L IS NT" Safe NOTE Bush v. Gore (2000) (Breyer, with Stevens and Ginsburg, dissenting, except to paragraphs 3 and 4): The federal legal question is insubstantial except for the issue of fairness in counting the ballots. The appropriate action is to remand the case with instructions to count all undervotes on the ballots with a single uniform standard. Removal Impeachment The Two stage process house investigates the charges of treason, bribery, or other high crimes and misdemeanors, if convinced of sufficient evidence of misconduct, the House passes the articles of impeachment specifying the crimes charged and authorizing trial The second stage, the trial takes place in the Senate with the chief justice of the U.S. presiding, conviction requires two-thirds vote of senators twono penalties other than removal from office by congress Tenure and Succession
4 year terms 22nd amendment limited terms to two in response to FR running for a third and fourth term Article II framers provided that VP assumes powers and responsibilities of the office in the event of death, resignation, or disability Tenure and Succession In response to LBJ accession to presidency after Kennedy assassination, was updated by the 25th amendment. Line of Succession Constitutional Powers Make treaties (with 2/3 senators concurring) Nominate and appoint ambassadors, judges The executive power shall be vested in a President What does the term executive power mean?
A mere designation of office or a general grant of power? Mere designation theory only those powers enumerated General grant of power or Stewardship theory all powers needed to run the nation. In re Neagle (1890)
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Relevant Cases Facts: David Neagle, a U.S. marshal, was assigned to protect Justice Stephen Field while Field was tending to circuit duties in California. This assignment was made by the U.S. president, based on prior trouble Justice Field encountered in the state, as well as by subsequent threats on his life. During the trip David Terry accosted Justice Field, and in the ensuing conflict Neagle shot and killed Terry in an effort to protect the justice. Neagle was charged with murder under California law. A federal court granted a writ of habeas corpus ordering the state court to release Neagle. In re Neagle (1890) Legal Question: Does the president, without congressional action, have the authority to issue an executive order, through the attorney general, to authorize the protection of Supreme Court justice? Yes. By a vote of 6 the Court ruled 6 2 in favor of Neagle. Holding: In re Neagle (1890) Reasoning: 1. Judges often perform duties wherever it is cnei to o oT u F lsuiadts ovn n t d s. hs id j c lue e e' di i in California were just as important as those he performed in Washington. Therefore, there is no doubt that when he was attacked by Terry, Field was conducting his business as circuit justice of the ninth circuit, and was entitled to all of the protection under those circumstances that the law would give him. In re Neagle (1890) 2. While no act of Congress exists that authorizes marshals to protect Supreme Court justices, to say a law must exist is unreasonably r tcv. h m r as o eidr e f m e rteT e a hl pw rs evd r sii s ' i o the general scope of his duties under the laws of te n e S t ads " w wtite h U id te n ia l " i n h t as a h meaning of the phrase in reference to the habeas corpus petition. In re Neagle (1890)
Sco 3Atl2 ele tate r i n "hl et n , rc dc r hth ped tsa i ie as se l t e a tatea s eahuy xct ,ad es a cr hth l b ftfl eeu d n h i k e w i l e" provided with the means to do so--to commission the so--to officers of the United States, and to appoint the most important of them with the advice and consent of the Senate. When a judge is discharging his duties and is threatened, the power of the president to protect the j g'l iudn b . u e i s nei l d sf e ae Habeas corpus should be granted because the prisoner was acting under the authority of law. Congressional Limits on Executive Power Youngstown Sheet case presidential powers may not be fixed, but the president cannot act against the will of Congress obligation to enforce the law: faithful execution of the laws requires the executive branch to enforce and administer the policies enacted by the legislature even if the president opposes them The Domestic Powers of the President Clinton v. City of New York (1998) Relevant Case Facts: The Line Item Veto Act allowed the president to cancel discretionary spending, new spending, or limited tax benefits. Congress could cancel these cuts, but the congressional cancellation would be subject to presidential veto. Additionally, any member of Congress--or individual--could Congress--or individual--could bring a federal suit if the Line Item Veto Act harmed them. President Clinton vetoed eighty items in conjunction with the Balanced Budget Act of 1997, including monies earmarked for New York hospitals; the city and hospitals sued. Clinton v. City of New York (1998) Legal Question: Does the Line Item Veto violate Article I, Section 7, Clause 2 (the Presentment Clause) of the Constitution? Yes. By a vote of 6 the Court ruled 6 3 in favor of New York. Holding: Clinton v. City of New York (1998) Reasoning: The president has amended two acts of Congress by repealing parts of each. This violates our precedent set out in Chadha. Chadha. president has responsibilities that directly relate to the legislative process: the State of the Union, where he can suggest laws, and the decision to sign laws upon presentment. The Clinton v. City of New York (1998)
A veto is different from the cancellation authority in this law. The Constitution (and President Washington) understood that presidents return the whole bill, rather than part of it. The intent of the Framers makes it clear that there is only one procedure for enacting laws. If the Line Item Veto were valid, it would allow the president to create a different law that was not voted on by either house of Congress. The only way to prescribe the Line Item Veto is through constitutional amendment. Clinton v. City of New York (1998) Dissents/Concurrences:(Kennedy, Dissents/Concurrences:(Kennedy, concurring): Clearly it is important to curb excessive spending and persistent spending. The Constitution has mechanisms to do so-so-federalism and the separation of powers. Just because these mechanisms are not sufficient does not mean the present law is constitutional. Clinton v. City of New York ( aawt OC no ad r e cnur g n d s t gn S l, i 'onrn (1998) crn ad ie i i ci h Be r o y, i s nn
part): The Line Item Veto is not the first law to allow the president to curb spending. But we ruled that law unconstitutional because it gave the executive legislative power. The Line Item Veto is the same as Congress giving the president control over spending more generally. Had this law simply allowed the president to decline to spend money (which is the discretion of the executive branch), the law would have the same effect. The point is that this is not r l a i I mV t ( ea hs f e otte ur e e l L et e t l a" kd u h Spe ay n e oh w a " m Court). Clinton v. City of New York (1998) (r e wt OC no ad c i d s t g Be r i 'onrn Saa ie i ) y, h l, s n n : The Constitution allows Congress and the president to try novel methods to carry out policies like balancing the budget. The Line Item Veto does not violate any textual command in the Constitution and does not violate any explicit aspect of the Separation of Powers. Presidential Signing Statements Point to provisions of the law the president has concerns with: Poi t p s et i e r ao o t l ga o rv eh r i nsn r e tn fh a ug f d e ed ' t p ti en e the law Announce constitutional limits on the implementation of some of its provisions, or Indicate directions to executive branch officials as to how to administer the new law in an acceptable manner Morrison v. Olson (1988) The Power of Appointment and Removal the appointments clause Article II, Sec. 2
Relevant Case Facts: Because of the Watergate scandal, Congress included a position for special prosecutor in the Ethics in Government Act of 1978. Three federal judges appointed by the chief justice every two years would choose this position. Once appointed, the special prosecutor could exercise all of the powers of the Justice Department. The special prosecutor could be removed by the attorney general, but only for cause or for disabilities affecting his or her ability to carry out the job. The tenure of a special prosecutor ends when the tasks he or she sets out to accomplish are completed. Morrison v. Olson (1988) After an investigation of the Environmental Protection Agency and Land and Natural Resources Division of the Department of Justices, the House Judiciary Committee investigated Justice Department officials and found that Theodore B. Olson, an assistant attorney general, provided false statements before the committee. The committee asked the attorney general to appoint a special prosecutor to deal with the matter. Olson refused to cooperate with the prosecutor and refused to produce documents on the ground that the special prosecutor provision of the Ethics in Government Act violated the Appointment Clause of the Constitution. He claimed that the special prosecutor was not an inferior officer, and therefore had to be appointed by the president and not a group of judges. Morrison v. Olson (1988) Legal Question: May a group of judges appoint a special prosecutor under the Ethics and Government Act of 1978? Yes. By a vote of 7 the Court ruled 7 1 in favor of the special prosecutor law. Holding: Morrison v. Olson (1988) Reasoning: 1. The special prosecutor is an inferior office in the federal government. a. Special prosecutors are subject to removal by higher executive officials (e.g., the attorney general). b. Special prosecutors are empowered to perform only certain limited duties of investigation and prosecution, ee tog te hv " l o ead u oi. vn huh hy ae f l w rn at ry up h t" c. The office has limited jurisdiction to specific cases. (Question: Is this true?) true?) d. Special prosecutors have limited tenure. Morrison v. Olson (1988) While appellees argue that the Appointment Clause does not allow interbranch appointments, the language of the clause provides no such limitations. There is also no evidence that the Framers wanted to disallow interbranch appointments. 3. Because conflicts of interest may arise in the executive branch, Congress moved the appointment of special prosecutors to the judiciary. Because Congress has such power, there is no Article III violation. Morrison v. Olson (1988) Only the executive branch can remove special prosecutors (for good cause). This means that the executive branch still has control over this office. Unlike in Bowsher and Myers, this case Myers, does not involve a congressional attempt to retain the power of r oaecp iC nr s nr apw ro ipah et e vlxet og ss om lo e fm ecm n m n e' s and conviction. This act puts the removal power with the executive. The special prosecutor does not violate Separation of Powers because the three branches of government are not absolutely independent. Another branch of government can, therefore, appoint inferior officers (in this case, the judiciary). Morrison v. Olson (1988) Dissents/Concurrences:(Scalia, Dissents/Concurrences:(Scalia, dissenting): Certainly the independent counsel is part of the executive branch. This is what her function is-is-to enforce laws. But the president does not, contrary to the majority, have power over the special poeu rT eda fe oi fr go rs t . h i o r v go "od co e m n cue de nt en h pedn hs ot l as os o m a te r i t acnr . " se o Morrison v. Olson (1988) The Constitution mandates that all executive functions fall under the control of the president. We cannot depart from the text of the Constitution as the majority has done. this statute deprives the president of control over the independent counsel, which violates Article II. Overall, Dismissing Executive Officials Myers v. United States (1926) Relevant Facts: In July 1917 President Wilson appointed Frank Myers to be first-class postmaster in firstPortland, Oregon, for a four-year term. In January 1920 fourWio a e fr e 'r i ao,n w e Myr l n s d o Myrseg t nad hn e s k s sn i s refused to resign Wilson asked the postmaster general to fire him. Myers claimed that, under a law passed in 1876, postmasters of 1 class were appointed and 1 3 could only be removed with the advice and consent of the Senate. Myers sued for his unpaid salary, and after he died his executor continued the legal action. Myers v. United States (1926) Legal Question: Does the president have the sole power to remove a person he has appointed with the advice and consent of the Senate? Yes. By a vote of 6 the Court ruled 6 4 in favor of the United States. Holding: Myers v. United States (1926) Reasoning: 1. The power to remove an appointee is different from the authority to consent or reject an appointment. In short, it is ...
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