How is this case different from previous cases in

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(How is this case different from previous cases in which the Court has struck down assertions of presidential power (for our purposes, the original steel seizure case?) A Toolkit for SOP Cases Circumstance Risk BIA Strong need for total country input Tyranny of the Majority C+P Powerful special interests, especially geo. concentrated Tyranny of the Minority P Alone Fast developing crisis Costly Political Inertia P Alone Sensitive nat’l sec. sit. Leaks, Ill-Informed decisions P Alone Sudden, irrevers. decision Rash Decisions C+P Opportunity to hide bad decisions Lack of transparency C+P Need for expertise/resources Uninformed reg. decisions P Alone Problem #1: Steel Seizure Case Redux Model Answer The issue is whether the President’s executive order is a valid exercise of his Article II powers. The President has no powers except those actually enumerated or granted by Congress, but the scope of Presidential power varies with the actions of Congress. When the President acts with the express or implied authorization of Congress, presidential power is at its zenith. The Military Procurement Act clearly authorizes the President’s executive order, and there is no suggestion that the Act exceeds the power of Congress. Therefore, the executive order is a valid exercise of the President’s Article II power. Problem #2: Hassan v. Rumsfeld Model Answer The issue is whether the President’s executive order is a valid exercise of his Article II powers. The President has no powers except those actually enumerated or granted by Congress, but the scope of Presidential power varies with the actions of Congress. When the President acts in the face of an express congressional prohibition, presidential power is at its lowest ebb. Federal law expressly prohibits the conduct authorized by the President’s executive order, and there is no suggestion that
Lovelace 8 the Act exceeds the powers of Congress. Therefore, the executive order is almost certainly unconstitutional. Takeaways Not much law on military and foreign affairs powers General consensus is that President has only those powers granted by Constitution and federal statute (i.e., Presidential power is governed by German-style rule) Big question is how broadly any given grant of statutory or constitutional authority should be interpreted Courts approach that question using Justice Jackson’s 3-part framework: 1. When the President acts with the express or implied authorization of Congress, presidential power is at its zenith 2. When Congress is silent, the President acts in a constitutional “twilight zone” 3. When the President acts in the face of express or implied congressional prohibition, presidential power is at its “lowest ebb” Review Day 17 1. T/F: There is a great deal of case law on the military and foreign affairs powers of the President?

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