Douglas argues unconstitutional here because

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Douglas argues unconstitutional here because president was impermissibly usurping Congress’ spending power 2. This approach recognizes the ability of the president to act without express constitutional or statutory authority, so long as the president is not infringing or usurping the powers of congress or the courts iii. The president may exercise powers not mentioned in the constitution so long as the president does not violate a statute or the constitution 1. Frankfurter, Jackson a. Both said that congress had already denied the president this power therefore it was unconstitutional 2. This approach sees it as congress’s responsibility to act to stop presidential infringements iv. The president has inherent powers that may not be restricted by congress and may act unless the constitution is violated 1. Vinson dissent 2. Grants president broad authority so long as the constitution is not violated 5. War Powers and Habeas a. Article I grants congress the power to declare wat and the authority to raise and support the army and the navy b. Article II makes the president the commander in chief c. Practice of waging war based on a formal declaration of war has become less common d. Also, traditional concepts of wat are difficult to apply because recently our national security has been focused on fighting terrorists who are not uniformed soldiers of a sovereign government, and this challenges traditional notions of the constitutional assignments of powers i. The term “war” has become looser ii. 6 provisions in Article I give Congress powers relevant to war and national security 1. Pg. 306 e. Congress has power to declare war, organize militia i. But where is the dividing line between congress and president is the issue ii. President needs to be able to respond if under fire f. The prize cases (pg. 310) i. Functionalistic approach 1. Declaring war isn’t the only way war can start ii. A blockade is an assertion of power to turn back foreign neutral vessels or to seize foreign neutrals and enemy vessels and either destroy them or keep them and their cargoes as “prizes of war” 1. Blockade is considered an act of war against the entity being blockaded iii. Issue was whether president had the right to issue a blockade iv. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city or territory, in possession of the other 46
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Con Law Outline 1. So the issue is whether at the time the blockade was instituted if a state of war existed which would justify it v. There were cannons being fired, and Congress wasn’t meeting for another month, so president thought the blockade was necessary vi. Majority says there was a war going on 1. People are shooting/killing and everyone else in the world is acknowledging that there is a war 2. Majority says war can commence without being announced by congress a.
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  • Fall '19
  • United States Congress

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