Separation of Powers Law : Cases and Materials

by Shane, Peter M.; Bruff, Harold H.

• ISBN13: 9780890893999
• ISBN10: 0890893993
• Edition: 2nd
• Format: Hardcover
• Copyright: 2005-01-01
• Publisher: Carolina Academic Pr

Summary

Presidential impeachment, Bush v. Gore, the authorization for military tribunals to try American civilians for criminal offenses, executive privilege squabbles with courts and Congress, the rise and fall of the line-item veto - it is impossible to overstate the significance of the inter-branch confrontations that have promised to revolutionize separation of powers understandings since the mid-1990s.In Separation of Powers Law, Second Edition, Professors (and former law deans) Shane and Bruff have updated their treatment of this critical area to encompass these and other dramatic issues, such as the impact of 9/11 on the law of electronics surveillance and the capacity of the executive branch to withhold sensitive information on national policy grounds. The books retains its clear structure and historical perspective, plus an emphasis on the ethical challenges posed for constitutional lawyers in the executive and legislative branches seeking to address novel constitutional issues in professionally appropriate ways.The authors continue to introdcue key episodes not only through judicial decisions, but also through administrative orders and memoranda, opinions of the Attorney General and the Office of Legal Counsel, and legislative documents, presenting a broad spectrum of the kinds of legal materials that government lawyers actually consult.

Table of Contents

Preface	xix
Introduction	3	(34)
Constitutional History	3	(9)
Atlantic Legacy	4	(1)
Government in Colonial America	5	(1)
Revolutionary State Governments	5	(2)
The Articles of Confederation	7	(1)
The Constitutional Convention	8	(3)
Expounding and Ratifying the Constitution	11	(1)
Approaches to Separation of Powers Analysis	12	(4)
Textual	13	(1)
Original Intent	13	(1)
Structural	14	(1)
Institutional Competence	15	(1)
Historical Practice	15	(1)
Values	15	(1)
The Ambiguities of Executive Power: Competing Theories of the Presidency	16	(10)
Washington	16	(2)
Jefferson	18	(1)
Jackson	19	(1)
Buchanan	20	(1)
Lincoln	20	(1)
Wilson on the Post-Civil War Presidency	21	(1)
Theodore Roosevelt and Taft	22	(1)
Franklin Roosevelt	23	(1)
Truman through Carter	24	(1)
Reagan and Bush I	25	(1)
Clinton	25	(1)
Bush II	26	(1)
An Institutional Overview	26	(11)
Congress	27	(4)
The Executive	31	(4)
The Judiciary	35	(2)
Framework: The Separation and Confluence of Powers	37	(192)
Analytic Framework	37	(75)
The Executive and the Judiciary	37	(3)
Marbury v. Madison	40	(8)
Note on Obtaining Judicial Review of Executive Actions	48	(5)
The Executive and Congress (as Mediated by the Courts)	53	(4)
United States v. Midwest Oil Co.	57	(8)
Youngstown Sheet & Tube Co. v. Sawyer	65	(18)
Congress and the Judiciary: Statutory Control of Federal Jurisdiction	83	(3)
Ex Parte McCardle	86	(1)
United States v. Klein	87	(5)
Judicial Self-Restraint	92	(3)
United States v. Richardson	95	(7)
Schlesinger v. Reservists Committee to Stop the War	102	(10)
Combining Powers in the Executive	112	(38)
Delegation of Legislative Powers	112	(8)
Mistretta v. United States	120	(11)
Problem: The Limits of Delegated Power	131	(1)
Presidential ``Legislation,'' or, the Other Side of Delegation: The Role of the Executive Order	132	(1)
AFL-CIO v. Kahn	133	(7)
Problem: Price Controls Under the Credit Control Act of 1969	140	(3)
Note on Private Enforcement of Executive Orders	143	(1)
Allocating Adjudicative Power Outside the Judiciary	143	(7)
Fundamental Checks and Balances	150	(79)
Veto Powers	151	(1)
The President's Veto	151	(4)
Pocket Vetoes	155	(1)
Barnes v. Kline	156	(6)
``Legislative Vetoes''	162	(2)
Immigration and Naturalization Service v. Chadha	164	(16)
Congress's ``Power of the Purse''	180	(1)
Overview of Budget and Spending Processes	181	(4)
Congressional Control of Spending	185	(1)
Authority for the Continuance of Governmental Functions During a Temporary Lapse in Appropriations	186	(5)
Brown v. Califano	191	(4)
Executive Control of Spending	195	(2)
Lincoln v. Vigil	197	(2)
Note on Impoundment of Funds	199	(3)
City of New Haven v. United States	202	(4)
The Item Veto	206	(1)
Clinton v. City of New York	207	(14)
Amending the Constitution	221	(1)
Coleman v. Miller	222	(7)
Autonomy and Mutual Accountability among the Branches	229	(188)
Congressional Power over the Membership of the Branches	229	(43)
Impeachment	229	(1)
``High Crimes and Misdemeanors''	229	(2)
Constitutional Grounds for Presidential Impeachment	231	(8)
Impeachment of Richard M. Nixon, President of the United States	239	(4)
H. RES. 611	243	(3)
Trial Memorandum of the United States House of Representatives	246	(5)
Answer of President William Jefferson Clinton to the Articles of Impeachment	251	(5)
A Judicial Role?	256	(1)
Nixon v. United States	256	(9)
Membership in Congress	265	(1)
Exclusion and Expulsion	265	(1)
Powell v. McCormack	265	(6)
Term Limits	271	(1)
Immunities of Government Officers	272	(46)
Congressional Immunity	272	(1)
Gravel v. United States	273	(8)
Davis v. Passman	281	(6)
Immunities of Executive Officers from Civil Liability	287	(1)
The President	287	(1)
Nixon v. Fitzgerald	287	(10)
Clinton v. Jones	297	(11)
Other Executive Officers	308	(1)
Harlow & Butterfield v. Fitzgerald	308	(4)
Mitchell v. Forsyth	312	(5)
Judicial Immunities	317	(1)
Information and Accountability	318	(48)
Confidentiality in Congress and the Judiciary	319	(1)
Executive Privilege	320	(1)
Courts v. The Executive	321	(1)
United States v. Nixon	321	(11)
Note on the State Secrets Privilege	332	(8)
Congress v. The Executive	340	(3)
Executive Branch Procedure for Invoking Executive Privilege	343	(1)
Memorandum for the Heads of Executive Departments and Agencies: November 4, 1982	343	(2)
A Constitutional Requirement of Compromise?	345	(1)
United States v. American Telephone & Telegraph Co.	345	(3)
Case Studies: Executive Response to Congressional Subpoenas	348	(1)
Contempt of Congress [Gorsuch]	349	(8)
United States v. House of Representatives of the United States	357	(2)
Contempt of Congress [Watt]	359	(7)
Congressional Power to Regulate Accountability	366	(51)
Regulating the Executive	367	(1)
Control of Presidential Documents	367	(1)
Nixon v. Administrator of General Services	367	(6)
The Administrative Procedure Act	373	(8)
Freedom of Information Act	381	(1)
Kissinger v. Reporters Committee for Freedom of the Press	381	(3)
Federal Advisory Committee Act	384	(3)
Ass'n of American Physicians and Surgeons v. Clinton	387	(6)
Cheney v. United States District Court for the District of Columbia	393	(7)
Other Statutory Restrictions	400	(1)
Subjecting Presidential Advisers to Advice and Consent	401	(4)
Regulating the Judiciary	405	(1)
Mistretta v. United States	406	(5)
Congressional Self-Regulation	411	(6)
Control of Administration by the Elected Branches	417	(196)
Personnel	417	(61)
Appointment of Executive Officers	417	(1)
Buckley v. Valeo	417	(11)
Note on Presidential Authority and the Civil Service	428	(2)
Appointment of Judges	430	(1)
Appointments to the Supreme Court	430	(1)
Note on Supreme Court Appointments	430	(6)
The Coming Crisis in Recovery and What Can Be Done About It	436	(2)
Reorganization of the Federal Judiciary	438	(2)
Appointments to the Courts of Appeals and District Courts	440	(1)
Recess Appointments of Judges	441	(1)
United States v. Woodley	441	(6)
Removals (Herein of Independent Agencies)	447	(1)
Separation of Powers	447	(1)
Myers v. United States	448	(8)
Humphrey's Executor v. United States	456	(5)
Bowsher v. Synar	461	(13)
First Amendment Limitations	474	(1)
Branti v. Finkel	474	(4)
Independent Prosecution: A Contemporary Synthesis	478	(21)
Morrison v. Olson	478	(21)
Supervision and Coordination of Policymaking	499	(53)
The President's Power to Manage Administration	499	(1)
Formative Years: Groping for Principles	499	(1)
The President and Accounting Officers	499	(2)
The Jewels of the Princess of Orange	501	(1)
The President's Statutory Powers to Manage the Executive Branch	502	(2)
Participation in Administrative Rulemaking	504	(1)
Sierra Club v. Costle	504	(9)
Regulatory Organization	513	(8)
Memorandum for Honorable David Stockman, Director, Office of Management and Budget	521	(8)
Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking	529	(10)
Congressional Oversight	539	(5)
A Unitary or Fragmentary Executive? The Special Status of the Independent Agencies Revisited	544	(8)
Inherent Executive Authority in Domestic Affairs?	552	(61)
Youngstown Revisited: An Inherent Executive ``Protective'' Power?	552	(2)
United States v. City of Philadelphia	554	(10)
Refusals to Enforce the Law	564	(1)
Power to Ignore the Courts?	564	(2)
Unconstitutional Statutes	566	(1)
Implementation	566	(2)
Case Study: ``Stay'' Provisions of the Competition in Contracting Act	568	(4)
Presidential Authority to Decline to Execute Unconstitutional Statutes	572	(3)
Defending Congress in Court	575	(1)
Representation of Congress and Congressional Interests in Court	575	(3)
Note on Congressional Standing	578	(1)
Raines v. Byrd	578	(9)
Laws ``Unjustified'' in Fact	587	(1)
Note: Commonwealth of Pennsylvania v. Lynn	587	(2)
Case Study: Enforcing the Statutory Exclusion of Alien Homosexuals	589	(5)
Conducting Litigation	594	(1)
Civil Litigation and Faithful Execution of the Laws	594	(4)
Enforcing the Criminal Law	598	(3)
Memorandum to All United States Attorneys and All Heads of Offices, Divisions, Bureaus and Boards of the Department of Justice---Subject: Dual Prosecution Policy in Cases Involving Violations of Civil Rights	601	(1)
Pardons and Reprieves	602	(11)
Foreign Policy and National Security	613	(194)
Analytic Framework: Sorting the Elected Branches' Claims to Power	614	(25)
Letters of Pacificus, No. I	614	(6)
Note: The History of National Security Powers	620	(3)
United States v. Curtiss-Wright Corp.	623	(6)
Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp.	629	(7)
Note: The Logan Act and the Federal Government's Monopoly in Foreign Policy	636	(3)
Executive Claims to Inherent and Exclusive Powers	639	(116)
Treaty Processes	639	(1)
Overview of Treaty Powers	639	(5)
Treaty Termination by the President	644	(1)
Goldwater v. Carter (D.C. Cir.)	644	(11)
Goldwater v. Carter (U.S.)	655	(5)
Executive Agreements	660	(1)
Note: International Non-Treaty Agreements	660	(1)
Memorandum Opinion for the United States Trade Representative: Whether Uruguay Round Agreements Required Ratification as a Treaty	661	(6)
United States v. Pink	667	(8)
Dames & Moore v. Regan	675	(18)
Control of Sensitive Information	693	(1)
New York Times Co. v. United States	694	(10)
Problem: Applying New York Times After September 11	704	(2)
Snepp v. United States	706	(5)
Note on Classification of Government Documents	711	(4)
National Security Decision Directive 84	715	(1)
National Security Decision Directive 84 (Hearing)	716	(5)
Power to Conduct Investigations (Herein, of Foreign Intelligence Surveillance)	721	(1)
Electronic Surveillance, Executive Power and the Fourth Amendment Prior to Keith	721	(1)
Foreign Intelligence Surveillance Act of 1977	721	(2)
United States v. United States District Court (Keith)	723	(7)
The Foreign Intelligence Surveillance Act, 1978--2001	730	(1)
Congress's View of the Legal and Policy Background to FISA	730	(1)
Foreign Intelligence Surveillance Act of 1977	730	(3)
How FISA Works	733	(1)
Foreign Intelligence Surveillance Act of 1977	733	(4)
FISA after September 11	737	(3)
In re: Sealed Case	740	(15)
Congress's Role in Regulating Foreign Policy	755	(36)
Direct Regulation of Foreign Affairs and National Security Policy	755	(1)
Presidential and Congressional Oversight of CIA and FBI Intelligence Gathering	755	(5)
The Iran--Contra Affair	760	(6)
Iran--Contra and Congressional Oversight of Covert Operations	766	(1)
Intelligence Authorization Act, Fiscal Year 1991	767	(5)
Conference Report on H.R. 1455	772	(1)
Foreign Policy and Foreign Commerce	773	(1)
The International Emergency Economic Powers Act	773	(2)
Trade Expansion Act	775	(1)
Independent Gasoline Marketers Council v. Duncan	775	(5)
Immigration and Foreign Policy	780	(1)
Regulatory Programs Affecting Foreign Policy	781	(1)
Westinghouse Electric Corp. v. U.S. Nuclear Regulatory Commission	781	(6)
Note: CAB Review of Air Carrier Acquisitions	787	(4)
Judicial Review and Foreign Policy	791	(16)
Haig v. Agee	793	(14)
War Powers	807	(196)
Power to Commit Troops---From the Founding to Vietnam	808	(49)
Scope of the Commander in Chief Clause: Early Views	808	(1)
The Federalist, No. 69 (Hamilton)	808	(1)
Little v. Barreme	809	(2)
The Prize Cases	811	(8)
Note: The Prize Cases and September 11	819	(1)
Authorization for the Use of Force	819	(1)
The Vietnam Watershed	820	(1)
Debating Executive Claims to Power	821	(1)
Meeker, The Legality of United States Participation in the Defense of Viet-Nam	821	(5)
National Commitments	826	(14)
Notes and Questions on Vietnam	840	(1)
Judicial Reluctance to Intervene	841	(1)
Mora v. McNamara	841	(4)
Congress's Efforts to Limit the President's Authority to Commit Troops: The War Powers Resolution	845	(1)
War Powers Resolution	845	(2)
President Nixon's Veto of the War Powers Resolution	847	(3)
War Powers: A Test of Compliance---Relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident	850	(1)
Explanation by Senator Jacob Javits of the Conference Report	851	(1)
Questions on the War Powers Resolution	851	(2)
Note: Covert Warmaking and the Neutrality Act	853	(2)
Note: War Powers and Impeachment	855	(2)
Unilateral Presidential Initiative after the War Powers Resolution	857	(44)
Presidential War-Making in the Post-Vietnam Era	857	(2)
Rescuing Americans	859	(1)
President Carter's Report to Speaker O'Neill Concerning the Abortive Rescue Attempt in Iran	860	(1)
Legal Opinion by Lloyd Cutler, President's Counsel, on War Powers Consultation Relative to the Iran Rescue Mission (May 9, 1980)	861	(1)
Stabilizing Other Governments in Furtherance of American Foreign Policy	862	(3)
Retaliation for Attacks on United States Persons	865	(1)
Protecting U.S. Persons and Property	866	(1)
Humanitarian Intervention	867	(1)
International Peacekeeping	868	(4)
Judicial Review of Presidential War-Making	872	(1)
Campbell v. Clinton	872	(16)
Reform of the War Powers Resolution	888	(1)
S. 5	888	(4)
S. 564	892	(9)
Congressionally Authorized Wars after Vietnam: The Persian Gulf and Iraq Wars	901	(31)
The Persian Gulf War: A New Watershed?	902	(1)
Managing the Crisis under Presidential Authority Alone	902	(1)
Letter to the Speaker of the House and the President Pro Tempore of the Senate on the Deployment of United States Armed Forces to Saudi Arabia and the Middle East	902	(1)
Letter to the Speaker of the House and the President Pro Tempore of the Senate on Additional Economic Measures Taken with Respect to Iraq and Kuwait	903	(1)
The United Nations Authorizes Force	904	(1)
United Nations Security Council Resolution 678	905	(1)
Congress Acts (and the President Responds)	906	(1)
Authorization for Use of Military Force Against Iraq Resolution	906	(1)
Statement on Signing the Resolution Authorizing the Use of Military Force against Iraq	907	(1)
The Conduct of the War	908	(1)
The Iraq Invasion of 2003	909	(1)
From the Persian Gulf War to the 2003 Invasion	910	(4)
Constitutional War Powers and International Law	914	(1)
David Ackerman, International Law and the Preemptive Use of Force against Iraq	914	(1)
Mary Ellen O'Connell, UN Resolution 1441: Compelling Saddam, Restraining Bush	915	(3)
The Necessity and Scope of Congressional Authorization	918	(1)
Authorization for Use of Military Force Against Iraq Resolution of 2002	918	(4)
Doe v. Bush	922	(9)
Interbranch Accountability for Preemptive War-Making and the Separation of Powers	931	(1)
Domestic Presidential Powers in Wartime	932	(61)
Civil Liberties	932	(1)
The Uncertain Legacy of Milligan and Korematsu	932	(1)
Ex Parte Milligan	933	(6)
Korematsu v. United States	939	(14)
Notes and Questions on Japanese Internment and its Aftermath	953	(2)
Wartime Powers During the ``War'' on Terror	955	(1)
Stephen J. Shapiro, et al., Report of the Bar of the City of New York	956	(1)
Notice: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism	957	(6)
Hamdi v. Rumsfeld	963	(22)
Note: Government Lawyering, September 11 and the Iraq War	985	(3)
Mobilization and Regulation of the Economy	988	(1)
Note: Presidential Economic Controls During World War II	988	(3)
Powers of the President under the War Labor Disputes Act to Seize Properties Affected by Strikes	991	(2)
Peace Time Authority to Use Troops for Law Enforcement (``Posse Comitatus'')	993	(8)
President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders---Little Rock, Arkansas	994	(7)
Federalism and War Powers	1001	(2)
Power and Institutional Design: The Case of the Presidency	1003	(92)
Presidential Elections	1004	(64)
The Role of States in Presidential Selection	1004	(1)
The Mechanics of the Electoral College: A Primer	1004	(1)
The Constitutional Basics	1004	(1)
The Statutory Framework	1005	(1)
The Nature of the Elector's Office	1006	(1)
The Merits of the Electoral College: A Debate	1007	(1)
Direct Popular Election of the President and Vice President of the United States	1007	(8)
J. A. Best, Prepared Statement on ``The Case for the Electoral College''	1015	(6)
Bush v. Gore and the Constitutional Law of Presidential Elections	1021	(1)
Peter M. Shane, Disappearing Democracy: How Bush v. Gore Undermined the Federal Right to Vote for Presidential Electors	1022	(5)
Bush v. Palm Beach County Canvassing Board	1027	(6)
Bush v. Gore [I]	1033	(2)
Bush v. Gore [II]	1035	(33)
Presidential and Vice-Presidential Succession	1068	(6)
R. Celada, Presidential Continuity and Vice Presidential Vacancy Amendment	1069	(4)
Note: Reagan-Bush Temporary Power Transfer	1073	(1)
Redesigning the President's Political Role	1074	(21)
Lloyd N. Cutler, To Form a Government	1074	(2)
One Six-Year Presidential Term	1076	(19)
Appendix: Selected Statutes and Presidential Documents	1095	(78)
United States Code---Selected Provisions
Title 2---The Congress	1096	(4)
Title 3---The President	1100	(1)
Title 5---Government Operations and Employees	1101	(1)
Title 18---Crimes and Criminal Procedure	1101	(3)
Title 22---Foreign Relations and Intercourse	1104	(1)
Title 28---Judiciary and Judicial Procedure	1104	(21)
Title 31---Money and Finance	1125	(4)
Title 40---Public Buildings, Property, and Works	1129	(1)
Title 44---Public Printing and Documents	1130	(5)
Title 50---War and National Defense	1135	(2)
Title 50, Appendix---War and National Defense	1137	(4)
Selected Presidential Documents	1141	(1)
January 1, 1863 By the President of the United States of America: A Proclamation	1141	(2)
Exec. Order No. 10340 April 10, 1952, 17 F.R. 3139 Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companies	1143	(1)
Exec. Order No. 11615 August 17, 1971, 36 F.R. 15727 Providing for Stabilization of Prices, Rents, Wages, and Salaries	1144	(2)
Exec. Order No. 12092 Nov. 1, 1978, 43 F.R. 51735 Prohibition Against Inflationary Procurement Practices	1146	(1)
Exec. Order No. 12866 Sep. 30, 1993, 58 F.R. 51735 Regulatory Planning and Review	1147	(11)
Constitution of the United States	1158	(15)
Index	1173