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Final Exam Notes - Final Exam(Monday April 21 st 8-10 Notes...

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Final Exam (Monday, April 21 st , 8-10) Notes 3/20 Separation of Powers Battles among various branches of fed govt, most b/w Congress and Pres, at times SupCt involved SupCt decides battles, determines which branch has constitutional power (the final arbiter) Distinguish: o Separation of Powers: division of powers between and among legislative, executive, and judicial functions clearly distinct (plus federalism) o Checks and balances: slight overlap of branches, to prevent consolidation of power in one branch (especially true with Pres enumerated powers) Presidential Powers: Constitution vague concerning powers of each branch, esp Pres’ enumerated powers Enumerated powers: o Commander in chief: foreign policy, not domestic (currently a push for more power in domestic sphere) o Make treaties: foreign o Appoint judges, ambassadors: foreign and domestic o Suggest legislation to Congress: usually domestic, could be foreign (ex: immigration reform) o Faithfully execute laws: could be either, more likely domestic power Result: balance of power b/w Pres and Congress Federalist Papers : 47, 48, 51 (all written by Madison) (Notion of Separation of Powers) 47: “accumulation of all powers, legislative, executive, and judicial, in same hands…[is] very definition of tyranny.” o Montesqiue’s argument o Madison: the sharing of power is not tyranny 48: checks and balances needed, “parchment barriers” (separation of powers) not sufficient to prevent accumulating power in one branch 51: govt must control governed while controlling itself, through ability to govern (each branch is strong) but not too strong (checks and balances) – “ambition countering ambition” Separation of Powers in Foreign Affairs: Pres has more power in foreign affairs (many implied) than he does in domestic affairs U.S. v. Curtiss-Wright Corp (1936), J Sutherland o Much of the distinction between pres. Foreign and domestic affairs stems from this case
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o Congress passed law to allow Pres to limit arms sales to Paraguay and Bolivia o Pres Roosevelt issued proclamation that enforced arms embargo to those countries fighting in the war o Curtiss-Wright sold weapons to Bolivia o Federal govt prosecutes o Sup Ct distinguished foreign and domestic powers: “President alone has power to speak as representative of nation. President is sole organ…in external [foreign] affairs” President does not need permission from Congress to do so (even though this power is not enumerated); it is an implied power President has implied powers here: 1) congressional authority in joint resolution; 2) even in absence of congressional authority National sovereignty in foreign affairs by one fed govt, not States; Pres to execute foreign policy Distinguish Carter Coal (1936) from Curtiss-Wright (1936), both J Sutherland opinions: o Carter: congressional delegation to Pres in domestic affairs: invalid/unconstitutional o Curtiss-Wright : congressional delegation to Pres in foreign affairs: valid o
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