Term
| What served as the executive power in states? |
|
Definition
| Committee of Safety for a State |
|
|
Term
| What was the total number of different delegates with executive experience at the Constitutional Convention? |
|
Definition
| 50 (Ranging from Governor, Committee of Safety for a State, Mayor, Officer in the Continental Army, etc.) |
|
|
Term
| 37 out of the 55 delegates served in what four executive positions? |
|
Definition
| State governor, Governor's council (colony or state), Committee of Safety, Officer in the Continental Army --> Tremendous executive power in the Constitutional Convention |
|
|
Term
What did delegates learn from state experience?
(Thach) |
|
Definition
-Legislative experience is the chief vice of states.
-If government isn't powerful enough, liberty is also at risk; for example, anarchy never lasts long, but is often replaced with tyranny.
-"Multiplicity, mutability, and the injustice of state laws." |
|
|
Term
How did the NY state governor compare to other state governors?
(Thach) |
|
Definition
State Governors: council of review elected by legislature, 1 year term elected by legislature, no veto, limits on reelection, legislative definition of powers
NY Governor: detailed list of powers, veto power, no council except appointment and veto, elected by people for three years, no limit on reelection (U.S. COTUS comes to follow NY) |
|
|
Term
|
Definition
| 1st Governor of NY. He was an executive who could keep the legislative powers intact. People came to recognize value of NY Constitutional provisions. |
|
|
Term
What did delegates learn from national experience?
(Thach) |
|
Definition
| The executive is a powerful check on the legislature. Keep the legislature out of executive details. |
|
|
Term
Is the national experience lesson similar to the state experience lesson?
(Bessette's question on Thach) |
|
Definition
| Storing illustrates two different principles: administrative and political; they are similar, but different. First, do the will of the legislative body well = servant/administrator. Second, keep the legislative body in check = politician. Both are necessary roles of the POTUS. |
|
|
Term
| What famous Americans were not at the Constitutional Convention? |
|
Definition
| John Adams, John Jay, Thomas Jefferson, Samuel Adams, and Patrick Henry |
|
|
Term
| The Virginia Plan (sometimes called the Randolph Plan, mostly written by Madison) |
|
Definition
-presented on May 29th
-POTUS chosen by the legislature
-fixed compensation, no increase or decrease during term (you don't want legislature to have that kind of power over executive -- independent executive)
-veto
-no 2nd term
-"executive rights vested in congress under confederation" |
|
|
Term
| What was the alternative to the VA Plan? |
|
Definition
|
|
Term
|
Definition
-5 members
-Randolph and Wilson served on it
-takes all terms & writes draft COTUS
-presents draft report on 08/08 |
|
|
Term
|
Definition
-5 members
-Governour Morris is principle author
-finishing touches |
|
|
Term
| "Executive rights vested in congress under confederation." (Original "vesting clause" in VA Plan) |
|
Definition
| Some powers and institutions are innately are innately executive, as well as the body itself. The structure should match the power, but there is one exception: the veto power. There are others necessarily to preserve separation of powers. |
|
|
Term
| What provisions do the delegates spend the most time debating? |
|
Definition
1 - mode of election
2 - term of office
3 - re-eligibility/impeachment
(The 3-legged Stool) |
|
|
Term
| Why weren't most delegates in favor of popular elections? |
|
Definition
| The American people wouldn't know anything about anything outside their own state; there was no radio/tv/internet, only pamphlets, but it was still long distance. The electoral college solves this. |
|
|
Term
| Why did Benjamin Franklin argue for no presidential salaries? |
|
Definition
-Franklin wanted true virtue in the leaders and an institutional design that accounted for the defects of men (ambition and avarice), even if it wasn't no salaries
-problem with Franklin's design: only wealthy people could be POTUS (to some extent, Franklin knew this) |
|
|
Term
| What is the difference between Mason's argument & Publius' argument on executive power? |
|
Definition
Mason: unitary executive will degenerate into monarchy or aristocracy, plural executive will check against encroachments of legislature and ambitious men, people in Republic will love their laws and come to the aid of the country when in need -- so you don't need a powerful executive
Publius: unitary executive purveys energy and spirit to large sphere (Fed. 70); on the right of command, if you're going to fight a real army you need a real army; if you're going to give a power, you don't limit it (war power, taxation, etc.) |
|
|
Term
| What does the Roman dictatorship teach us about executive power? |
|
Definition
| It reflects the prerogative power. Sometimes, in time of crisis, it is necessary for government to alter or go outside of the COTUS in order to preserve it. |
|
|
Term
| Why did Rome only fail in time of crisis? |
|
Definition
| The Roman government was so disorganized! The executive power was not central -- 3 important assemblies, several smaller ones, Senate of Rome, and unitary executive (Revolution of 509 B.C. replaced this with 2 consuls limited in their power). |
|
|
Term
| Why did not one of the 90 Roman dictators try to extend their time? |
|
Definition
| Honor. Romans very much respected the Republic and their place in it. Also, if one was thinking of extending their time, the Army and citizenry wouldn't allow it. |
|
|
Term
|
Definition
Legislative - supreme power
Executive - domestic (serving the purpose of the legislature, carrying out the laws)
Federative - war & peace, leagues and alliances, external relations |
|
|
Term
| Why would you want Locke's executive power and federative power to be conferred in the same person? |
|
Definition
| In principal, the same person does both, but it isn't necessary. You want them to do both because it would cause conflict otherwise. Think of two different people in charge of the army -- one using it for domestic affairs and the other for foreign affairs. |
|
|
Term
| Why is prerogative power necessary? |
|
Definition
1- The legislature cannot foresee everything.
2- The legislature may not be in session, but the might come into session and could act appropriately. (temporary prerogative ex. Lincoln's executive orders, 1861)
3- Laws impede executive action |
|
|
Term
| What is prerogative power? |
|
Definition
| To act according to broad discretion for the public good without the prescription of the law; and sometimes even against it. |
|
|
Term
| Why does the POTUS alone have removal power? |
|
Definition
-take care clause
-vesting clause
-you can't direct and control if you can't fire
The argument for congressional discretion cites the necessary and proper clause, as well as the power to create offices. A third argument confers the power jointly in POTUS and the Senate. POTUS alone ends up with the power. |
|
|
Term
| Hamilton as Pacificus argues POTUS has power to proclaim neutrality under what authority? |
|
Definition
-vesting clause (ALL of the government's possible executive power is in the POTUS)
-the power of foreign affairs is in nature executive (Locke's federative power)
-the power isn't legislative or judicial so it must be executive, someone has to declare peace
-POTUS is executor of laws. Treaties are included in our laws. |
|
|
Term
| What does Madison as Helvidius argue? |
|
Definition
-Madison doesn't deny that the vesting clause vests some power, but he doesn't believe that it vests the power of war and peace.
-How free is Congress to decide if the POTUS already decided? Constitutionally speaking, 100%. Practically? They can't do anything.
-Madison thinks the executive power is solely executing the laws.
-Power of war not intrinsically executive, it's legislative; it is a deliberative matter, by nature and it intrinsically changes the set of laws a government has. If a government is at war/neutral, citizens have different laws.
-Power of treaties more legislative, but simply not either. He quotes Hamilton. (federative power) |
|
|
Term
| How dangerous is the war power for Madison and Hamilton? |
|
Definition
| Madison doesn't mention it, but agrees only Congress can move nation from state of peace to state of war. Hamilton thinks the war power is very dangerous. |
|
|
Term
| What constitutional provisions ensure that the POTUS cares about what he does in office? |
|
Definition
-longer terms
-chance at a 2nd term
-salary
(his glory depends on using all the tools at his disposal) |
|
|
Term
| What are the three interests of political motivations? |
|
Definition
1.love of fame ("the noblest of minds do love fame" - Hamilton)
2. ambition (can be for power, honor, or vanity)
3. avarice
Because these three motivations are most common, institutions must be designed around them. |
|
|
Term
| Wilson, Morris, and Thach proposed the POTUS as a man of the people/popular leader. What about Hamilton? |
|
Definition
-It is the job of the leader to resist desires of people, give people time for reflection
-Executive shouldn't submit to the will of the people, but do what is good for them.
-Hamilton, as Publius, suggests that the fact POTUS did a good job would be enough at reelection season; he doesn't mention campaigning. But, the Wilson/Morris belief would be, if you're popular leader, you campaign/give speeches. First 100 years of U.S. history POTUS didn't campaign (party did on his behalf). |
|
|
Term
| What is Hamilton view of prerogative power? |
|
Definition
| Constitution should be broad so POTUS would not have to go outside of it. Hamilton thought that Jefferson view made POTUS a rule breaker. Stems from Roman commander Lysander. |
|
|
Term
| What is Jefferson view of prerogative power? |
|
Definition
| COTUS should be narrow and if POTUS has to go outside once in awhile, it's okay. |
|
|
Term
| Is Neustadt Jeffersonian or Hamiltonian? |
|
Definition
| Jeffersonian because of focus on self-interest, which differs from Hamiltonian, as "Publius" view of self-interest. (see Fed 23,25) |
|
|
Term
| Examples of Steward POTUS |
|
Definition
| Lincoln, FDR, TR, Jackson |
|
|
Term
|
Definition
| Taft, Buchanan, Truman, Ike |
|
|
Term
| What are the three developments of the Rhetorical Presidency? |
|
Definition
1- a modern doctrine of presidential leadership
2- the modern mass media
3- the modern presidential campaign
The most important of these three is the change in doctrine, for through the 19th century presidential rhetoric was more circumspect and confined to communications within government or ceremonial speeches. Not until the 20th century did the president begin to appeal directly to the people on policy grounds in order to pressure Congress. |
|
|
Term
| What can an emphasis on popular presidential rhetoric result in? |
|
Definition
-An "opinion that speaking is governing" and become so routine as to be disregarded.
-As experts communication within government begins to conflict with popular rhetoric from the president to the public at large. the result is to "deligitimate" the office to a certain degree for subsequent presidents, and to weaken the office by unreasonably raising public expectations to the point that government cannot fulfill them, creating a rising cynicism in the public. |
|
|
Term
| What constitutional issues are brought to the forefront by Rhetorical Presidency? |
|
Definition
| The disjunction between traditional presidential practice within constitutional limits, and a new practice of direct public appeal which circumvents the constitutional design of separated powers. |
|
|
Term
| Which POTUS superimposed the new way of constitutional design as posited by Tulis and Rhetorical Presidency? |
|
Definition
| Wilson-onward (see: The President of the United States, early Wilson) |
|
|
Term
| Which POTUS superimposed the middle way of constitutional design as posited by Tulis and Rhetorical Presidency? |
|
Definition
|
|
Term
| Which POTUS superimposed the old way of constitutional design as posited by Tulis and Rhetorical Presidency? |
|
Definition
|
|
Term
|
Definition
A vigorous Executive consistent with republican government. What constitutes a proper Executive? Unity.
-"Energy in the executive is a leading character in the definition of good government."
-"Decision, activity, secrecy, and dispatch" |
|
|
Term
|
Definition
| Duration in office affects his firmness in action -- more interest in what is permanent. The executive should not be subservient to popular impulses or to those of the legislature. Independence of departments of governments necessary. Shortness of term will lessen independence. |
|
|
Term
|
Definition
| Modes of obtaining mutual checks and balances through interior structure of government. Ambition to counteract ambition. Multiplicity of interests among the people in an extended republic. |
|
|
Term
|
Definition
The necessity of COTUS/Government as Energetic as the One Proposed to the Preservation of the Union.
-"...formation, direction, or support of the national forces." |
|
|
Term
|
Definition
| Objection that States can provide for the common defense. The common defense cannot be entrusted to the separate States because it would be oppressive to some States, might become dangerous to all, would create jealousies between the States, and might peril the authority of the Union. |
|
|
Term
|
Definition
| Duration in office affects stability of administration =. A limit of a single term would diminish inducements to good behavior, increase temptations to misconduct, prevent experience in the office, deprive the country in emergencies of the services of the best men, and act as a constitutional barrier to stability of administration. |
|
|
Term
|
Definition
| Without suitable provision the Executive will be at the mercy of the legislature, and the independence of the Executive should not be impaired. The veto power! |
|
|
Term
|
Definition
| The POTUS as Commander in Chief. He may require written opinions of executive department heads. Pardoning power lodged responsibly in one man--even in relation to crime of treason. |
|
|
Term
|
Definition
| One of the best features of COTUS is the treaty-making power. Objection that it combines the executive and legislative departments considered. It is a proper combination. Objection to requiring only two thirds of senators present. "Appears merely legislative, but neither power simply." |
|
|
Term
|
Definition
A single person, compared with the King of Great Britain and Governor of NY. Enumerated powers listed.
-"The POTUS is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces..." |
|
|
Term
|
Definition
| The Mode of Electing the POTUS - the only part of the COTUS not condemned by its proponents. It is well guarded. Desirable to have the sense of the people in the choice. Electoral College helps to avoid tumult and disorder. |
|
|
Term
|
Definition
-"reason, justice, and truth can regain authority over the public mind"
-on The Senate
-reference to Socrates |
|
|
Term
|
Definition
-Switch congressional war power from "make war" to "declare war"
-Gerry & Madison proposed it
-Narrows congressional powers
-"make" doesn't allow for POTUS ability to repel sudden attacks
-balance between legislature and executive |
|
|
Term
|
Definition
| The State constitutions compared on this point with the one proposed. The practice of the State governments. The large States will control the small. |
|
|
Term
|
Definition
| Need for veneration and stability in government. Reason of public to control to control government. Popular passions to be regulated by government. |
|
|
Term
|
Definition
-first time SCOTUS makes distinction between total/impartial, perfect/imperfect war
-whether impartial/imperfect, it's still war
-Congress can pass acts regarding conduct of war without declaration of war, but it would be a limited war |
|
|
Term
|
Definition
-Marshall is now on the Court.
-universal principle that applies to partial and general war: recapture of a ship is lawful when you can't discern it's character
-"the whole powers of war are vested in Congress" = ambiguous then he references the ability to turn to acts of Congress in partial war for guidance |
|
|
Term
|
Definition
-POTUS can't excuse Little because his job is to execute the laws, the law didn't explicitly allow for the seizure of boats returning from enemy ports
-Adams issues orders that are broader than the law
-spirit of the letter vs. letter of the law (letter wins)
-Congress acted, POTUS must abide by it |
|
|
Term
|
Definition
-circuit court case
-vesting clause, take care clause, commander in chief all cited
-overt argument that citizens outside of your country, your rights follow and you look to your POTUS for protection
-up to POTUS discretion how to protect citizens abroad, the decision is file inconclusive
-justified for the Commander to giver orders via Secretary for the Navy via POTUS
-executive discretion (Marbury v Madison) |
|
|
Term
|
Definition
-doesn't think Polk should have started the Mexican-American war, he went so far as to say Polk unconstitutionally started the war
-Lincoln supported it once it began, thought it was his duty
-reasons he thought it was unconstitutional: Lincoln believed to repel invasion means you cannot invade unless 1) the soil is that of that of the U.S. before the invasion began or 2) Congress annexed the land. Neither was met before the war began.
-"when necessary to repel invasion"
-broad argument against preemptive strikes, only argument in COTUS FOR them is at State level because of Native Americans
-too much power for the president |
|
|
Term
|
Definition
-Lincoln suspends Habaeus Corpus, but Congress had not passed it yet
-debate compares Lincoln to british Kings
-POTUS under COTUS cannot suspend this, it's in Art I not Art II
-military officer cannot arrest a person who is not subject to rules and articles of war except in aid of civil authority when person committed offense against US |
|
|
Term
|
Definition
-opinion is 9-0, 5-4 split on the argument
-overall, they opinion that he was not indicted by a grand jury and must be freed. Congress had the authority and passed legislation (Habeas Corpus Act of 1863 gives them authority.)
-5: civilian courts open so no military trials for civilians.
-5: Congress could grant no such power to a military tribunal.
-4: the military courts courts could try civilians if civilians are unequal/incompetent to the task. Why? proof beyond a reasonable doubt & unanimity on a jury required for civil cases.
-4:Military courts make and execute decisions within 1-2 days.
-4: Congress has the power to maintain army and navy and declare war. To bring a nation to War, so it has the powers to succeed in going to war. It would necessarily follow it has the authority to provide military tribunals because they are necessary to succeed.
-5: Unlike the 4, the majority ground the military tribunals in necessity. The 4 ground it in COTUS and Congressional authority. |
|
|
Term
| If you think about Hamiltonian-Jeffersonian split of Lockian prerogative and the Milligan split of opinion is 5-4, who would be on which side? |
|
Definition
-4: Hamiltonian, suspension of rights grounded in COTUS
-5: Jefferson, but uses Hamiltonian language in the beginning. Martial rule grounded in necessity, not COTUS. |
|
|
Term
| U.S. v Curtiss-Wright Corp (1936) |
|
Definition
-Congress delegates authority to POTUS to impose an embargo, which he does through an embargo
-Does the POTUS have broad executive authority to conduct foreign affairs?
-foreign affairs power (federative power) doesn't come from COTUS, it comes from nature of sovereignty
-POTUS domestic power comes from Art. I, Sec. 8
-national government is sole representative of country in international relations with POTUS acting as sole organ, why?
1. he receives ambassadors
2. treaty making power
3. Commander in chief
-For Pacificus, it's the vesting clause that POTUS gets the vesting clause |
|
|
Term
| What is the theme of the Internment cases? |
|
Definition
| Overall, what should the SCOTUS do, when the POTUS/Congress/Military agree that a certain deprivation of rights is essential for waging war? |
|
|
Term
| Hirabayashi v U.S. (1943) |
|
Definition
-curfew case
-9-0 Congress can delegate legislative power to the military |
|
|
Term
|
Definition
-6-3
-removal/exclusion
-there's really a military need, it's not racism. Even though Justice Black says they must use the most strict scrutiny, Black is mostly differential to the other branches.
-Frankfurter is strongly deferential and thinks the exclusion is necessary for conducting war: "that is their business, not ours".
-Frankfurter's concurrence in Korematsu is similar to the argument for the ability of Congress to do what is necessary to be successful in war. Was powers are just as legitimate as peace powers.
-Murphy: this is legalization of racism. There should be individual hearings, the alternative is individual guilt/disloyalty.
-Jackson: mirrors Frankfurter's dissent. SCOTUS can't judge military. What majority is doing is distorting COTUS--it's not the Court's business to decide.
-Out of the three dissenters, Murphy and Jackson applied their own test and found what was done was unreasonable. Jackson (3rd) argues Court should not intervene in military matters and that intervening gives too much power to military for next POTUS to use, SCOTUS just made it legal! Bad COTUS law is dangerous. (Similar to the majority in Milligan) |
|
|
Term
|
Definition
-9-0
-government cannot detain citizen when government admits she is loyal
-detention
-comes out on same day as Korematsu |
|
|
Term
| Steel Seizure Case (1952) |
|
Definition
-6-3 on holding, 5-1 on opinion
-no law for the authority Truman claims to have
-intrinsically a legislative power to seize steel mills and POTUS didn't go to Congress (is it really legislative?)
-Truman doesn't think he needs authority of Congress, but he admits he will defer to Congress |
|
|
Term
| Jackson's concurrence on the Steel Seizure Case |
|
Definition
-first, critique of comprehensive and undefined presidential power
-he doesn't start with COTUS, he start with historical materials that lead to executive power
-you can't take out single clauses or even single Articles, you must look at COTUS entirely, otherwise, it's too narrow. The President's powers are not fixed, but fluctuate depending on relationship with Congress (this is presumably why he doesn't start with Art. II).
-Three distinctions of how the POTUS & Congress interact:
1. When POTUS acts pursuant to Congressional act, POTUS power is at its greatest. (ex. U.S. v. Curtiss-Wright)
2. TWILIGHT ZONE: Powers may overlap. Hard to tell.
3. When POTUS acts contradictory to Congressional Act, POTUS power is at its lowest.
-When there is an overlap, there is not going to be a lot of theory or law regarding what to do.
-Twilight zone might contain 4th category of independent presidential powers.
-When there is a dispute, Congress wins over POTUS. Always. Hints at legislative supremacy in section 1. But why? framers didn't intend that. |
|
|
Term
| Why did Jackson's concurrence last longer than Justice Black's majority rule? (Steel Seizure Case) |
|
Definition
-Black's rule is too narrow and simplistic
-Jackson's concurrence details rules to follow
-Senators like the concurrence in Justice confirmation |
|
|
Term
| War Powers Resolution of 1973 |
|
Definition
-Ambiguity re: Section 2, Paragraph C:
The constitutional powers of the President as Commander in Chief to introduce U.S. Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.
-constitutionality has not been recognized by POTUS or SCOTUS |
|
|
Term
|
Definition
-9-0 opinion
-Is Milligan opinion applicable? No. The facts differed enough by way of spies and sabateurs. Milligan was a civilian and couldn't be tried in military courts. These people aren't civilians and they are unlawful belligerents.
-Lawful vs. Unlawful belligerence. It came down to wearing the uniform or not (uniform = enemy combatant, no uniform = spy).
-Statutory basis = Articles of War, so military tribunal is okay.
-Quirin overturns broad principle that you can never have military courts for U.S. citizens when civil courts are open as established by Milligan.
-POTUS might have been able to authorize military commissions because he is commander in Chief, but SCOTUS doesn't need to answer that broad question yet.
-All 8 agree that given what Articles of War say, there's no ground to grant writ of HC, but there's a split: First Group - Articles of War don't apply to enemy belligerents, military commissions are under POTUS authority. Second Group - POTUS acts are consistent within acts of Congress, including Articles of War. |
|
|
Term
| Authorization of Military Force (2001) |
|
Definition
-Ambiguity re:
"Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States"
Are they conferring the power or recognizing it? |
|
|
Term
|
Definition
-6-3
-When rights does an American citizen detained as enemy combatant have?
-Majority: doesn't want to undermine POTUS authority to wage war well, but people still have rights
-Court decided those rights should be fair notice and opportunity to rebut before a neutral decisionmaker
-Some concessions are made to the executive still: hearsay evidence is allowed & presumption is now in favor of the government (proof of burden is now on defendant) |
|
|
Term
| Justice Thomas' dissent on Hamdi v Rumsfeld |
|
Definition
-POTUS sole organ of foreign affairs with Congress having substantial role, but judiciary interference in national destroys purpose of vesting primary responsibility in unitary executive.
-How? 1. Courts lack relevant information and expertise to second-guess decisions made by POTUS based on information properly withheld. 2. Such decisions are not amenable to judicial determination because they're large, complex, and "subject to prophecy." 3. Primacy of the political branches in foreign affairs and national security contexts.
-It shouldn't be a surprise then, that Congress has provided POTUS with broad authority, this doesn't mean whatever not enumerated POTUS is deprived of.
-Similarly, SCOTUS cannot decide whether or not Hamdi is an enemy combatant.
-The Court can decide if POTUS has asserted authority, but Court doesn't have expertise on if persons are combatants, that's another branch.
-AUMF is valid, but power to detain doesn't end with cessation of formal hostilities.
-"due process requires nothing more than good faith executive determination" |
|
|
Term
|
Definition
-majority fiercely comes out against administration
-SCOTUS isn't afraid to interfere |
|
|
Term
| What section of the Constitution defends State preeminent strikes? |
|
Definition
|
|
Term
| Explain Fisher view of war powers. |
|
Definition
-narrow view
-interprets "declare" as"initiate"
-cites Federalist 69
-executive power of war = defensive only!
-Congress, not the POTUS does the calling
-Bessette critique: Congress provides for calling out, but not necessarily that Congress does the calling itself |
|
|
Term
| Explain Lofgren view of war powers. |
|
Definition
-narrow view
-by way of letters of marque and reprisals that Congress is dominant
-cites Federalist 69
-war power is "properly legislative"
-Bessette critique: this overstates constitutional convention/debate between Wilson and Madison |
|
|
Term
| What two paths did the framers NOT take in the Constitution in regards to the war powers? |
|
Definition
1. Jeffersonian model: Executive could not introduce armed forces.
2. South Carolina model: No power to make war or peace. |
|
|
Term
| Explain Yoo view of war powers. |
|
Definition
-broad view
-Yoo argues an intentional gray area between POTUS and Congress to cooperate in foreign policy.
-POTUS can do everything except move country from state of peace to state of war; including limited war, preemptive war, foreign policy, etc. |
|
|
Term
| Explain Bessette's chart of war powers. |
|
Definition
Congress: move country from state of peace to state of war, limited war, reprisals
Gray Area: treaty violation, foreign policy, protecting U.S. interests, humane purposes, fighting terrorism
POTUS: repel attacks, preemptive strike, protect U.S. citizens and commerce |
|
|
Term
| What are the five times war has been declared in U.S. history? |
|
Definition
1. War of 1812
2. Mexican-American War
3. Spanish-American War
4. WWI
5. WWII |
|
|
Term
|
Definition
-case concerned civil service system (1887, Pendleton Act introduced the Civil Service against the Spoils System)
-POTUS is able to remove employees
-if Congress vests the appointment, then Congress itself cannot be directly involved in the removal
-cites vesting clause supported by take care clause, appointment clause
-in order to execute the laws effectively the POTUS must be in charge of his subordinates |
|
|
Term
| Humphrey's v. U.S. (1935) |
|
Definition
-Humphrey's legitimizes independent regulatory agencies
-for removal, you must look at the character of the office in question
-FTC (independent regulatory agency) Act set the terms of removal: "inefficiency, neglect of duty, or malfeasanse" |
|
|
Term
| Reagan's Signing Statement (1987) |
|
Definition
-signing statement on Independent Council Reauthorization Act
-He was "gratified that the issue before the court", but he wouldn't go against their decision.
-the special division of the court of appeals APPOINTS the independent counsel
-no one REVIEWS the independent counsel work (Roman dictator?)
-REMOVAL by Attorney General for good cause. If not removed for good cause, independent counsel can be relieved in court and receive backpay or be place in job again. |
|
|
Term
|
Definition
-Key question: Is the official purely executive or not?
-Scalia's dissent: He had issue with how "inferior" was defined. There are two ways two ways to look at it. 1. If they are subordinate or 2. lower in rank. Subordinate makes more sense to Scalia. He points to the Ambassador of Luxembourg -- Just because the country is small doesn't make the official serving them any less principal. Additionally Scalia says Morrison is subordinate to no one not even POTUS! It's harder to get rid of this officer than others and this officer has powers to sue for documents of national security -- even the Attorney General can't do that! Morrison makes most sense as a principal officer, therefore this person was improperly appointed, therefore this is unconstitutional. If you just look at removal, MYERS is the precedent and only POTUS should be able to remove.
-vesting clause/executive power important to Scalia
-The Majority Holding: the key distinction is not executive vs. quasi/legislative-judicial, but whether or not the POTUS is still able to perform his duties
-Why might the focus on the take care clause? Because the job duties of independent council are too narrow, they are too hard to remove, which does infringe on POTUS ability to take care laws are faithfully executed.
-Majority focuses on take care clause not vesting clause like Scalia does.
-Scalia brings up the politics of the time, which highlights interbranch conflict. Majority says there is no violation of separation of powers because the existence of the independent council is not increasing the power of one branch at the expense of another. |
|
|
Term
|
Definition
-"vacancies that may happen" = carried over before or during a recess
-recess of Congress = intra + inter recess
-Congress is in recess whenever they recognize themselves to be in recess. |
|
|
Term
| Jackson interpretation of separation of powers. |
|
Definition
-departmentalism
-Jackson makes a separation of powers argument as to why he can address the constitutionality of an issue.
-Each branch has the obligation to interpret COTUS, not just the Supreme Court. |
|
|
Term
| Where does Lincoln fit into Tulis' rhetoric argument? |
|
Definition
| Lincoln is deeply concerned about public opinion, he doesn't northern opinion to move towards indifference (as Douglass on slavery, cited in "House Divided"). Even in the beginning, you cannot find Founders defend slavery as a "positive good" -- now country is split, divided morally. Lincoln's powerful rhetoric sounds a lot like the middle way, but his tone is not demagogic. |
|
|
Term
| Buchanan & Lincoln on secession |
|
Definition
-In his view, Buchanan thinks he can do nothing and turns it over to Congress.
-In his view, Lincoln thinks he can do everything because of the take care clause, oath, etc. See: 1st Inaugural. (He doesn't do everything he thinks he can do) |
|
|
Term
| Lincoln's Message to Congress in a Special Session, 07/04/1861 |
|
Definition
-"strictly legal": 75,000 militia & "proceedings in the nature of a blockade" (blockade is an act of war and he didn't want to give legitimacy to the South), militia laws for POTUS to call forth militia to protect union
-"strictly legal" implies the next category is legal in a broader sense, but not "strictly legal"
-volunteers for Army & Navy: Congress decides the size of military, but popular demand and public necessity will justify their ratification
-Habeas Corpus (they don't ratify until 1863) / Lockean prerogative, COTUS doesn't say who should suspend the writ only that it should be suspended during times of rebellion; that rebellion existed before Congress was in session. A more broad argument is the whole of the laws could not be faithfully executed with this one law being upheld? Would you let all the laws but one go unexecuted? But, Lincoln doesn't even think he needs this argument, he doesn't think he's breaking the law, but the Constitutional argument is there. |
|
|
Term
|
Definition
-cases were brought to recover damages suffered by ships carrying cargo to Confederacy, which had been damaged by raids from the U.S.
-Did a state of war exist at the time the blockade was instituted that would justify it?
-5-4 yes, but very close
-although civil war was not proclaimed in name, its actual existence was known
-vesting clause, take care clause, commander in chief all to POTUS
-POTUS has the authority to prosecute the war, not declare it |
|
|
Term
| What are the characteristics of a good President, according to Publius? |
|
Definition
-stern virtue
-courage to do their duty |
|
|
Term
|
Definition
-very strong POTUS who didn't defend strong presidency
-very energetic
-he acts vigorously to double the size of the U.S.
-"cabinet" doesn't appear in COTUS, rather heads of departments
-successful presidency because he was a strong POTUS
-3 strong acts Jefferson took:
1. war against Barbary pirates to defend U.S. commerce
2. Louisiana Purchase
3. 1807, Jefferson took money out of the treasury, without appropriations when Congress was not in session for defense because it looked like war would break out (similar to Lincoln). This was unconstitutional.
-Though Jefferson's view on the LA purchase (constitutional or not) is unclear, he does defend it (1810 letter) via Lockean prerogative power, which can be used in more than just emergencies.
-Why did he not make this defense public? He said we are much better off if we interpret COTUS in a narrow sense. He doesn't want this to be used in the future as law. The alternative is Hamilton as Publius (interpret it broadly so you don't have to go outside of it). |
|
|
Term
|
Definition
-very strong POTUS who didn't defend strong presidency
-very energetic
-he acts vigorously to double the size of the U.S.
-"cabinet" doesn't appear in COTUS, rather heads of departments
-successful presidency because he was a strong POTUS
-3 strong acts Jefferson took:
1. war against Barbary pirates to defend U.S. commerce
2. Louisiana Purchase
3. 1807, Jefferson took money out of the treasury, without appropriations when Congress was not in session for defense because it looked like war would break out (similar to Lincoln). This was unconstitutional.
-Though Jefferson's view on the LA purchase (constitutional or not) is unclear, he does defend it (1810 letter) via Lockean prerogative power, which can be used in more than just emergencies.
-Why did he not make this defense public? He said we are much better off if we interpret COTUS in a narrow sense. He doesn't want this to be used in the future as law. The alternative is Hamilton as Publius (interpret it broadly so you don't have to go outside of it). |
|
|
Term
|
Definition
-very strong POTUS who didn't defend strong presidency
-very energetic
-he acts vigorously to double the size of the U.S.
-"cabinet" doesn't appear in COTUS, rather heads of departments
-successful presidency because he was a strong POTUS
-3 strong acts Jefferson took:
1. war against Barbary pirates to defend U.S. commerce
2. Louisiana Purchase
3. 1807, Jefferson took money out of the treasury, without appropriations when Congress was not in session for defense because it looked like war would break out (similar to Lincoln). This was unconstitutional.
-Though Jefferson's view on the LA purchase (constitutional or not) is unclear, he does defend it (1810 letter) via Lockean prerogative power, which can be used in more than just emergencies.
-Why did he not make this defense public? He said we are much better off if we interpret COTUS in a narrow sense. He doesn't want this to be used in the future as law. The alternative is Hamilton as Publius (interpret it broadly so you don't have to go outside of it). |
|
|
Term
| Precedent set by Washington Administration |
|
Definition
-Should the POTUS veto on constitutional grounds or policy disapproval?
-Washington set precedent for both. First, he vetoes the question of representative because the COTUS is explicit on this. He also vetoes a policy disapproval, as well. Congress passes an act that would end pay to a military company on the frontier the day it is signed, Washington vetoes it.
-Favor of executive privilege set by Washington. For example, in the St. Clair episode he doesn't have to give documents that are injurious to public interest even at the behest of Congress. |
|
|
Term
|
Definition
-Mob rule must not spread or people will lose their attachment to their country or to the law. What is the solution? Law abidingness as a political religion.
-This speech is a critique of Federalist 51 (at least the portion on ambition) -- Lincoln is saying you haven't solved the problem of ambition, you've mitigated it! But it isn't solved.
-"They were giant oaks; but the all-resistless hurricane has swept over them, and left only here and there, a lonely trunk, despoiled of its verdure, shorn of its foliage; unshading and unshaded,..and be no more." --> The "They" in the quote is stories of the Revolution, without this foundation, we will fall. See: Federalist 49.
-"Reason, cold, calculating unimpassioned reason, must furnish all the materials for our future support and defense -- Let those materials be moulded into general intelligence, sound morality, and ... a reverence for Constitution and laws." --> COTUS is not a machine that will gould itself, it needs morality, lawabidingness, etc. |
|
|
Term
| What key events led to the Civil War? |
|
Definition
1. Northwest Ordinance of 1787
2. COTUS makes three compromises w/slavery:
-3/5 clause
-restriction on Congress's power to limit importation of slaves before 1808
-fugitive slave clause
3. LA purchase doubles the size of US
4. MO Compromise of 1820
5. Fredrick Douglass autobiography
6. Wilmot Proviso of 1846
7. Compromise of 1850
8. Kansas-Nebraska Act
9. Dred Scott decision (1857)
10. Lincoln-Douglas debates of 1858
11. Lincoln's campaign/election of 1860 |
|
|
Term
| What is the middle way of Presidential rhetoric, as detailed by Tulis's Rhetorical Presidency? |
|
Definition
-big, public campaigns are necessary
-justifiable to go outside of old way (Founders way), example: Hepburn Act
-TR uses language to attack demagoguery |
|
|
Term
| What is the new way of Presidential rhetoric, as detailed by Tulis's Rhetorical Presidency? |
|
Definition
-POTUS rhetoric is not simply tolerated, but promoted
-POTUS is a leader, actual execution of laws is delegated
-People choose POTUS and then POTUS molds public opinion to compel congress |
|
|
Term
| What is wrong with the new way of Presidential rhetoric, as detailed by Tulis's Rhetorical Presidency? |
|
Definition
-it can't really deliver
-the speech becomes the event
-it undermines interbranch deliberation |
|
|
Term
| T. Roosevelt's Stewardship Theory |
|
Definition
-POTUS can do anything not explicitly prohibited by COTUS
-POTUS is "...a steward of the people...."
-connotation of overseer instead of merely a servant
-How does this compare to Taft? Taft thought he could only do what was listed in COTUS. |
|
|
Term
| What are the four Constitutional Presidency schools as listed in Myth of the Modern Presidency? |
|
Definition
1. The Progressive School: POTUS gets authority from popular opinion/public, not the Constitution. Interpret POTUS power narrowly, but that's bad, it's why they're extra-constitutional.
2. Legalists - They want to bring POTUS power back under COTUS, otherwise it is dangerous. Interpret POTUS power narrowly, but that's good.
3. "Storing school" - Constitutional Presidency has been interpreted too narrowly, but if you look to COTUS properly, POTUS is strong (Hamiltonian view).
4. "Nichols school" - Accepts certain amount of third view, but that view fails to see role of public opinion as a source of authority. Although this source of authority is extra-constitutional, there is a ground for this source of authority. |
|
|
Term
| What's the relationship of Constitution and direct popular connection? (Myth of the Modern Presidency) |
|
Definition
| Authority and legitimacy are entirely different from other terms. Everywhere Nichols suggested source of authority as public connected, Bessette suggests maybe that is false. In fact, source of authority comes from Constitution. That is the main dispute between the Nichols and Storing schools. For example, look at the popular vote losers (Bush, Hayes, Harrison, JQ Adams), they got fewer votes than their opponent, but do they have any less legitimacy than others? No. Maybe they have less power, but not less authority and legitimacy. Same for plurality presidents and VPs who become POTUS. |
|
|
Term
| Does power come from legal authority or political influence? |
|
Definition
-Constitutionalists argue that authority comes from COTUS and political influence comes from political opinion.
-Hamilton views POTUS as a Constitutional officer
-Wilson/Morris/Thach view the POTUS as a popular leader
-Nichols tries to pull the two views together and downplays the tensions of pulling them together. For example, if the peoplpe are the source of POTUS's authority, who is the president to deny the people what they want? |
|
|
Term
|
Definition
-7-2 decision
-holding is based on the presentment clause and bicameralism
-makes legislative veto unconstitutional, which was a dominant tool after the New Deal
-White's dissent is an argument for the need of Congress to combat/keep up with the modern administrative state
-Powell's dissent argues Congressional act against Chadha is like a Bill of Attainder, making a decision about a person and then convicting them. It's a violation of separation of powers. |
|
|
Term
|
Definition
-if Nixon would have claimed executive privilege for the sake of national security, SCOTUS might have deferred (basis for executive privilege is the take care clause)
-the rule is: executive privilege always fails to criminals process
-Bessette interpretation: Either the SCOTUS is speaking up for it's own authority over the executive or it's making a broader argument about why we're better off letting POTUS lose.
-Madison's view: No branch gets to decide on it's own the limit of the powers of the other branches.
-Meta-constitutional argument: a. If it's military/diplomatic/national security, they wouldn't even be asking to look at the material. b. If it's not, the claim to privilege cannot prevail in a criminal trial. |
|
|
Term
|
Definition
-argument is so important because of it's broad interpretation of the take care clause. The Court ruled that the take care clause applies not just to statutes, but to any obligation growing out of Constitution itself.
-Why did they make the broad argument and then end with the specific law (US code, section 78)? They wanted to point it out! Perhaps even for future use. |
|
|
Term
| How does Neustadt's view of duty differ from Publius view? |
|
Definition
-For Publius, duty is a real thing and ideally those who serve are those who understand it
-For Neustadt, he disparages it and focuses on power-seeking
-promotion of self-interest over duty for Neustadt |
|
|
Term
"High Crimes and Misdemeanors"
(Bessette and Schmitt) |
|
Definition
-early daft of COTUS only included "treason" and "bribery" to which Mason contested; he suggested maladministration (mal literally means 'morally bad'), which was too vague.
-Three broad interpretations on "high crimes and misdemeanors": 1. consonant with the separation of powers principle, the standard for impeachment was not so low as to encourage Congress to make impeachment a routine means for checking POTUS. 2. The phrase includes offenses that are not strictly speaking, illegal. 3. The phrase was generally associated with violations of a public trust and, in the major impeachment case of the time, involved actions which in some fashion undermined or ran contrary to the fundamental norms of sound rule.
-The true test of presidential performance is whether duties are faithfully carried out. How does COTUS single out POTUS in this way? the Oath and the Vesting Clause.
-First impeachment trial of Senator Blount questions whether impeachment can be used for acts beyond specific misuse of public office.
-The record of US impeachments makes clear that misbehavior is included in what happens "under color of office." |
|
|
Term
| The Myth of the Modern Presidency |
|
Definition
-Nichols asserts that "the true change is that recent President do more than previous Presidents, but that is traceable to the simple fact that modern American government as a whole does more"
-problem of the modern POTUS is that it has forgotten its constitutional roots. This failure works to undermine the authority of the presidency, since "by failing to recognize the constitutional origins of the major elements of the modern Presidency, the doctrine of the modern Presidency ignores the extent to which the Constitution shapes contemporary political behavior."
-modern problem not with the presidency, but that we expect too much of the government |
|
|
