Midterm Exam II Review Guide PDF

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MIDTERM EXAM, PART II REVIEW PSC310

60 Point Essay #1: The Delegation Doctrine 

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Separation of Powers o One of the brilliant innovations from the Framers (idea borrowed from Baron Montesquei from Spirit of the Laws) o It’s an easy principle to state, and a difficult one to apply and enforce, because government does isn’t always necessarily tidily divided into three distinct compartments- there are some grey areas, the biggest one being Congress’s delegation of authority to other branches; where congress by statute appoints someone else to make rules (the Delegation Doctrine); o Two basic theories of how the limits of separation of powers should be enforced: formalism and functionalism  Strict Formalist Theory: believers say that the Framers gave us three distinct branches for very good reasons and each should do exactly what it’s assigned to do; the constitutional lines are very clear and there should be no deviations whatsoever (Example: Clinton v. New York: Line Item Veto case- not President’s job to make a law, it’s Congress’s)  Functionalist Theory: says that there is room for fluidity; matter of practicality, there needs to be cooperation and power-sharing among the branches on occasion; the purpose of the separation of powers is the avoid tyranny; the Framers didn’t want one branch becoming all powerful; those are the lines that we cannot blur; power sharing is fine as long as no single branch becomes too powerful (Example: Steven Breyer’s dissent in New York v. Clinton- Congress should have the authority to experiment with various ways of lawmaking so the Line Item Veto should be allowed) Reasons to Delegate o Constitution says Congress is the nation’s lawmaker; the job of Congress has gotten to be very big; it became an unwieldy task for Congress to pass laws on all of the issues facing the nation; Congress often has made a broad policy to delegate the authority to implement that plan (to make rules and regulations, and to flesh out the details); they usually delegate to the executive branch, but not always o Sometimes Congress delegates for political reasons; in the Curtis Wright case, one of the reasons they delegated to the President was because Congress didn’t want to take the heat for imposing or not imposing the arms embargo; they just passed the ball to the President; Congress does this a lot o Congress can anticipate a triggering event (i.e., war) and delegate the authority to the president to deal with it before the event occurs

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Rules of Court: Federal Courts Wayman v. Southard (1825) o Decided by Marshall o The first delegation of Congress that came up to the Supreme Court involved the Judiciary Act of 1789 (first major piece of legislation passed by Congress under the U.S. Constitution) o Featured the delegation of authority to the federal courts to make their own rules of court governance; these rules are challenged on the theory that lawmaking is for Congress, not for the Courts o Functional Approach: Marshall says only Congress can make the rules for important stuff, but for matters of lesser public interest they can delegate to someone else because Congress has better stuff to do; he thinks who better to implement the court rules than the judges themselves?; he says the delegation is okay in this case for that reason o What about when Congress delegates on an important matter, like tariff policy? J. W. Hampton Company v. U.S. (1925) (9-0 ruling) o In 1922, Congress created a tariff commission of experts (i.e., economists, businesspeople); this is a time where people wanted experts to have control, and the separation of powers seemed to be “outdated;” Congress passed a law that said they would set rates initially, but the commission has the authority to tinker with those rates up to a variance of 50%; the Supreme Court says this is okay because Congress gave them an intelligible principle of power; the principle says that the baseline are the rates set by Congress, the tariff commission can vary them within a range set by Congress according to their discretion; this is basically unbridled discretion; if this is okay, then what is not okay? this is going pretty far...that’s where the next case comes in The 1930s in the “last hurrah” of laissez-faire constitutionalism o The Supreme Court is still fighting against New Deal regulations and state law regulations of the economy; they’re going to use any doctrine they can come up with to get rid of these laws; they use the Delegation Doctrine for the first time to knock down some laws that they don’t like o Up to 1935 the Supreme Court had never struck down a delegation of authority by Congress to somebody else to make rules o Panama Refining Company v. Ryan (1935) (first time they strike one down) o This involves an act of Congress that gives the President discretion to ban hot oil (the excess over the quota) from interstate commerce; state laws have put quotas on production as a price-support means; Congress has authorized the president to ban shipments of that oil in interstate commerce- otherwise, it would be perfectly legal o Supreme Court says this is unbridled discretion; the President is not given any guidance on how to apply that discretion, which is lawmaking, and hence, a

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power of Congress; this is policy making, which means it’s an unconstitutional delegation Schechter Poultry v. U.S. (1935) o Involves the National Industrial Recovery Act; the problem is the Great Depression indicated a need for greater regulation of various industries o A poultry code was written up that micromanaged every aspect of the industry; once they agree to an extremely detailed code, if president signed it, it became law; what Congress had delegated to the president was the absolute authority to make law without any Congressional input simply by accepting one of these private-sector industry codes; this allows the President sweeping authority to make laws regulating the economy o Supreme court says is the kind of delegation that could never be justified; this is the President acting as a dictator; Congress has delegated almost absolute authority to the president in this area, and Congress is supposed to be making the laws (Cardozo says this is delegation run riot- absolutely unconstitutional) o Historical Context  What’s going on in Germany at this time that might cause the Supreme Court to be concerned about delegation of authority? The rise of the Third Reich and Hitler- the Enabling Act of 1933 that delegated all authority to Hitler Group Work o Defend Scalia’s dissenting opinion Ristretta -seven factors -11 factors -Lone voice crying in the wilderness -no legitimate delegation -“non-delegation doctrine”

60 Point Essay #2: The President’s Authority in Foreign and Military Affairs 

Presidents’ Constitutional powers over foreign relations o Send ambassadors: he’s chief diplomat; he can receive ambassadors which means he recognizes foreign governments as legitimate or not o Enter treaties subject to Senate approval; supermajority of 2/3 of the Senate is required to ratify the treaty o Commander in chief of the armed forces; technically, he doesn’t have the power to make war (Congress has that power by a simple majority vote of both houses); but the president has made wars in the past nonetheless; there have been 5

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declared wars in U.S. history and over 200 undeclared wars that are all presidential wars In the 1930s, as the world was heading toward WWII, the Supreme Court in two opinions recognized the president’s power in foreign and military affairs as virtually unlimited, as plenary, that he is the sole organ in their orders in American foreign relations and defense policy, and Congress had no authority whatsoever over it  U.S. v. Curtis Wright Export Company (1936) (7-1 ruling) (Broadview/ Classic Texec Order (southerland j) o Curtis Wright Export Company was headquartered in Dayton, Ohio; had started manufacturing aircraft in the late 1920s primarily for the civilian/domestic market; planes were becoming really popular, but that stopped because of the Great Depression, so the company looks for foreign markets- either civilian or military; during this time, there was a big global market for planes o There’s a war going on in South America (Chaco War); Bolivia and Paraguay were fighting over a region called El Chaco; Bolivia wants to buy war planes, Curtis Wright sells them war planes, Congress launches investigation in 1934 on this and the munitions industry generally in America (the NYE committee); the head of NYE writes a report that calls the munitions industry the “merchants of death,” the “merchants” are blamed for American entry into WWI, and he says the real reason America got into the war was to protect business investments in England and to further to fortunes of the munitions industry o President Roosevelt then asked Congress for Congressional authorization to impose an arms embargo on warring countries in his discretion specifically naming the Chaco War as one that he had particular interest in; Congress approved; the next day, he imposed an absolute embargo on all arms sales to the countries involved o This is detrimental to Curtis Wright’s sales, so they try to cheat by disguising military aircraft as passenger aircraft; they get caught; they get a hefty fine and challenge it in the Supreme Court on the theory that the President had no authority to do this- that Congress couldn’t delegate that power to the president, and the president had no Constitutional authority on his own motion to impose an embargo of this kind, rather it’s a matter of lawmaking for Congress alone o Supreme Court decides that the delegation was proper  Important part of the ruling has to do with the President’s raw Constitutional authority as commander in chief and chief diplomat  Justice Southerland said even if congress didn’t pass any statute delegating authority to him, he would have the Constitutional authority standing alone to impose this embargo as our chief diplomat and commander in chief; he says the president is the sole organ of American foreign policy (gets language from a speech by John

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Marshall in reference to Adams- that he has “unfettered, unrestrained discretion to conduct American foreign affairs wjthout any interference from Congress;” we can’t have Congress playing politics in foreign relations; we need consistency and rational with the ability to be implemented quickly; this is what the president is for, this is what the Framers had in mind)  What other reasons does the president need absolute discretion?  The President has the information, the intelligence, the personnel to execute these policies rationally; Congress and the public can’t have access to this information because it’s classified; the President and his groups are institutionally suited to make these decisions unlike Congress  Secrecy is essential in this environment; the practice of Congress for a long time had been when asking for documents from the administration, they demand that other departments produce documents; Goes all the way back to the Washington administration when Congress demand he provide documents about Jay’s Treaty of 1795, Washington said this stuff is off limits and that became precedent  Southerland ultimately says that the (entirely the president’s prerogative U.S. v. Belmont (Executive agreement) (1937) o Belmont Corporation had substantial investments in Russia prior to the Russian Revolution; communists took over and seized all foreign investment without compensating anyone for it; in 1933, the U.S. Government recognized the Stalin regime as legitimate; FDR did this the same day the prohibition ended to force the recognition of the Soviet Union off page one of the newspapers (lots of resistance); U.S. is only taking this stance because of Hitler- “an enemy of my enemy is a friend;” as part of this agreement with Russia, FDR agrees to waive all American claims for compensation of seized property; Belmont Corporation sues and asks where the President gets the authority to just give away our compensation and say “let’s forget about it” o This isn’t even in the treaty- you can put anything in a treaty! This is considered an informal recognition know as an executive agreement: agreement between our chief executive and the head of state of another country o What power does the President have to make an executive agreement that is going to have the force of law? Supreme Court, in this case, says that an executive agreement has exactly the same force and effect as a treaty; now the President doesn’t even need to go to the Senate and get a 2/3 confirmation as he would with a treaty- he can just use this option and bypass that confirmation; that’s too much power given to the president; the Supreme Court sees WW2 is coming and they want to make sure the president can deal

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with crises quickly and decisively without having to deal with Congress on any level o Between 1945 and 2008, the United States entered 1,056 Senate-ratified treaties and 16,735 executive agreement; they are treated a little differently as a matter of practice- administrations are not technically bound by prior executive agreements (it was just an agreement with that specific president); future administrations can ignore it, but most have treated it as binding As we move into the mid-20th / the 21st century, the Supreme Court gets a little more concerned about the President having way too much power in the area of foreign affairs; they want to cut back on the president’s power Youngstown Sheet and Tube v. Sawyer (1952) o Steel seizure case; the Supreme Court said that the President simply calling a policy matter one that involves military defense or foreign affairs is not dispositive; Truman said he had to seize the steel mills and operate them using the army in the name of the U.S. government as a national security measure; the Supreme Court said “well you can call it that, Harry, but that’s not what it is;” that’s a domestic policy matter that involves a labor dispute (a strike) that is the subject of domestic labor law specifically the Taft-Hartley Act and the 80-day cooling off period that it provides; the President cannot intrude on Congress’s prerogatives in that area just by calling it a national security matter; the Court also noted that where the president acts contrary to a legislative enactment, his power is at a low ebb on the sliding scale; the President claims he has the power as the chief diplomat, but what he really wants to do violates a Congressional statute; Court says that the President’s Constitutional power is offset by Congress’s policy; they aren’t saying he has no power, but in balancing the two, they are going to look at Congressional power a little more seriously Zivototsky v. Kerry (2015) o Passport issue with President Bush; son of Israeli parents was born in Israel and they wanted that to be considered his place of birth; the U.S. government didn’t recognize Israel as legitimate- they only recognized Jerusalem, so they put that; two countries are fighting over Jerusalem, but Bush’s presidential policy decided to call it Jerusalem to be vague; they wanted to avoid international tension between Israel and Palestine o Congress passes a statute that says the passports have to list Israel as the place of birth; Supreme Court says this is the president’s call- he’s the one with the power to recognize foreign governments as legitimate or not; the Court goes on to say that everything about the President having sweeping power in the Curtis Wright case was all dictum (they don’t think the president has absolute authority and there is no role for Congress in setting the nation’s foreign affairs); they note that Congress makes the law in all areas, which may mean laws that impact foreign relations War Powers Act of 1973

o It’s an attempt to limit Nixon’s power after Vietnam (and all subsequent presidents); Congress’s attempt to reign in the President’s abilities to fight a war on his own authority; included that the president could put soldiers on the ground for up to 90 days but after that Congress can intervene or extend it o President must give Congress his game plan to explain himself within 48 hours, and he has 90 days to act; after that, the mission ends immediately, Americans must come home, and the war is over unless Congress extends the time by special legislation or a declaration of war o Congress can end the mission immediately during those 90 days with a simple majority in both houses to (not subject to presidential veto) o Is that constitutional? President keeps calling the shots and Congress hasn’t really checked him, which means every president since Nixon said “that’s unconstitutional;” they just ignore it and see it as invalid, and Congress doesn’t implement checks and balances

30 Point Essay: Bush v. Gore 

FACTS o Election of 2000 (closest presidential election in American history) o Gore won the popular vote, Bush won the electoral vote; third time this has ever happened in US history; all four times that it happened, it was at the benefits of a Republican candidate o This particular election all comes down to the Florida vote; there are voting irregularities in that state and they’re having a hard time getting the vote tally together; whichever way Florida goes will determine the winner of the presidency in the electoral college o Automatic recount signaled by the software that counts up the ballots- it was too close, it was within the margin of error; automatic computerized recount narrows Bush’s lead from 1,780 votes to a mere 250 votes; this margin of error is statistically insignificant- it could just have easily been Gore so they need to have another recount o There’s a major problem with undercounted ballots (there were lots of ballots that did not register a vote for the president at all)  Chads  Hanging, dangling, dimpled chads  Florida had a system where voters use punch cards and feed it into computer; in some cases, people punched more than one hole; in essence, there are lots of undercounted ballots; the ones that can be addressed are the one with one chad picked, which would require a manual hand recount; Gore people demand this o They’re running up against some statutory deadlines  November 18: Secretary of state is to certify state election results

December 12: Under federal law, states are supposed to have their election results certified so that they can take advantage of federal safe harbor provisions (if they met this deadline, whatever delegation the state designates for its electoral college representatives cannot be challenged under federal law)  December 18: Electoral college voting day; under the U.S. Constitution Article II, all states must cast their electoral votes on the same day; this is not subject to change unless Congress changes the date for the entire nation Florida Secretary of State Kathryn Harris (R) announces to the press that recount or not recount, her job requires her to certify the vote on November 18th and that’s what she’s going to do regardless of the status of any recount Gore people go to Florida supreme court and ask for relief  Unanimously, the Florida Supreme Court says all ballots must be recounted, which can’t possibly be done by the 18th deadline so they extend it to November 26th; that violates what the Florida legislature had done Bush supporters challenge it in U.S. Supreme Court December 4th: The U.S. Supreme Court vacates the Florida Supreme Court ruling and remands it to the Florida Supreme Court to explain why they changed the deadline and what their legal/Constitutional justification for that is; Supreme Court doesn’t understand why the state changed the date (doesn’t appear that they have the authority to do that) What does the Florida deadline have to do with the U.S. Supreme Court and Federal law?  Article 2: legislatures of the state will determine how presidential elections are conducted within their borders; it’s a job for the legislature; even though it’s a state law issue, it is an issue that is deleg...