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Law Outlines Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines

Separation Of Powers Outline

Updated Separation Of Powers Notes

Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines

Constitutional Law: Fourteenth Amendment, Separation of Powers

Approximately 49 pages

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Separation of Powers

Courts & Executive

  • Should there be a non-justiciable political question?

  • Should court try to resolve these complicated issues?

  • Should the court let other brances resolve the issues and not enter?

  • Think about how the cases fit into the 14A…

Youngstown Sheet & Tube Co. v. Sawyer (1952)

  • (Recall Marbury and declining advisory opinions; tone of S. Ct. to Prez)

  • 6-3 Decision. Korean war, and steel mill strike

  • Taft-Hartley bill rejected an amendment to give president emergency powers.

  • Court on accelerated timeline: April 9 Strike -> May Argument -> June 2 decision

  • Black Majority: 2 possible statutes but Truman used neither. No implied power for executive to seize private property during war time..

    • Formalist interpretation of executive power and constitution.

  • FFF Concurrence: more flexible account of constitutional interpretation.

    • Could be a “gloss” on Constitution if Congress hadn’t been so explicit in rejecting the possibility.

  • Jackson: Masterpiece of Constitutional law.

    • Functionalist, not formalist.

    • Judging calls for judgment.

    • Tri-parthied theory:

      • (1) Cases in which the President was acting with express or implied authority from Congress

      • (2) Cases in which Congress had thus far been silent

      • (3) Cases in which the President was defying congressional orders

        • Here, president acts with the lowest level of legitimacy.

        • (PROF: Could arguably be #1 or #2 because Congress said nothing, and Truman asked)

    • Queasy about undeclared wars.

    • Points to other countries’ systems. Worried about power grabs by executive.

  • CJ Vinson Dissents: rejects “messenger boy” theory of executive power. Sees Truman in Jackson’s category #2.

United States v. Nixon (1974): 8-0 opinion

  • Criminal case, subpoena on President Nixon. Claims executive privilege (Aids have to be honest/open in their job)

  • Branches cannot share power: the judiciary and executive have explicit domains. [Is that actually true?]

  • Executive privilege not in Constitution, but relates to executive’s power and can be Constitutionally based

    • Is it absolute or qualified? Subject to judicial review?

    • Marbury: Branches have obligation to Constitution, Judiciary must uphold Due Process and Criminal Process

  • Executive must follow the law.

  • Commentary

    • Echoes of Youngstown – speed & zealousness of the Court. Congressional impeachment was ongoing.

    • Should Court play referee on political questions?

    • Stood up to the president.

    • Should President be at the whim of a District Court?

Nixon v. Fitzgerald (1982): 5-4

  • President is immune from civil liability based on his official acts; not immune from Criminal liability.

Clinton v. Jones (1997): Unanimous

  • Supreme Court not grant a delay of a civil case on issues from before he took office.

  • Wouldn’t affect President’s job

    • Is that true?

Reconciling these two:

  • maybe Fitzgerald and Clinton are both wrongly decided?

    • Active vs. retired president

    • Clinton eligible for Anti-canon? An obtuse quality to say “Oh, he’s just a president”

  • Do Courts treat Congress vs. Prez controversies different than Prez v. Judiciary?


  • Article II § 4: High crimes and misdemeanors

    • Crimes: Treason, Bribery, HC/D.

    • What is...

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