Wednesday, March 14, 2007

Quiz Review

Post your questions in the comments section. The quiz will cover these cases:

SC v. Katzenbach
Clinton v. NY
Morrison v. Olson
Humphrey’s Executor v. US
US v. Nixon
MS v. Johnson
Clinton v. Jones
Goldwater v. Carter
Haig v. Agee

The quiz may also address the Court's transition from Watkins to Barenblatt. Some students have asked that I post this slide from the lecture presentation:

Foreign Affairs and the Court

•Article II of the Constitution grants the president the power to “with the Advice and Consent of the Senate, … make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls.”
•The president is also designated as Commander in Chief of the military and given the power to “receive Ambassadors and other public Ministers.”
•On the other hand Article III, Section 2 states that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made….”
•Courts have authority over “all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies…between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
•Indeed the Framers believed cases involving international relations to be of such importance that they granted the Supreme Court original jurisdiction “In all Cases affecting Ambassadors, other public Ministers and Consuls….”
•There is nothing in the Constitution that allows the president to remove these cases from the jurisdiction of the federal judiciary.
•The determination that the Constitution grants foreign relations power to the Executive Branch exclusive of the Judicial Branch, therefore, is a product of tradition and not the actual text of the document.


Propagandhi said...

Here's my take on the hypothetical regarding the Homeland Security Act, if any finds an error in fact or logic please let me know.

Is the appointment process for the 10 member commission under the Homeland Security Act legal under the appointments clause (Article II, Sec. 2) which allows for the appointment of inferior officials as Congress see’s fit and requires principal officials to be appointed by the President with consent of the Senate?

1. Are the commission members inferior as based on Morrison V. Olson?

(a) Are the commission members subject to removal ?

Yes, they can be removed by the Attorney General for good cause.

(b)Are they limited in scope with regard to their duties?

Yes, they are only to investigate matters relating to 9/11
(c)Are they limited in tenure?

Yes, it would be presumable that they would cease to exist once all evidence regarding intelligence failure before, after and during 9/11 had been established and resolved.

And yet, if they are inferior why are some of them appointed as if they were principal officials?

2. Does having the judicial branch appoint officials for the executive branch violate separation of powers?

(a) No, there is nothing in the Constitution preventing interbranch appointments so long as it does not violate separation of powers or produce incongruity.

(b)Since the three judge panel will not be involved in the case after appointment there is no incongruity of interests

(c)The “good cause” rule does not bind the President too much so it is not a separation of power.

(d)The courts never held that the Constitution requires that the three branches “operate with absolute independence”

In final, yes the appointment process is legal based on Morrison. The officials would seem to be inferior even if some of them are appointed in the same manner as principal officials. Nothing in the Constitution says that inferior officials can’t be appointed in that manner, it only states the specific way in which principal officials may be appointed. Furthermore the appointments do not violate separation of powers via interbranch appointments, incongruity of duties or usurpation of Executive power.


3. Was the President able to fire the commission officials?

(a)No, because they can only be terminated by the attorney general for good cause which was found to be a lawful condition under Morrison.

(b)Also, they are a quasi-judicial and quasi-legislative in function and Humphrey limited the President’s power of removal for officials that are not purely executive.

4. Was the Subpoena lawful?

(a)Maybe, the need for executive privilege cannot supersede the due process and need for lawful investigation of what could become a criminal trial EXCEPT in cases regarding a claim of military, national security or diplomatic reasons which could make the President immune as stated in United States v. Nixon

(b)So it would depend on whether or not the President could prove that revealing the information would be harmful for national security or diplomatic reasons which seems probable since the Bin Laden family are members of the Saudi Royal family which is the ruling party of Saudi Arabia.

Propagandhi said...

And here is my take on the 2nd part regarding the Security Act.

Is the appointment procedure for the Port Security Commission lawful?

1. Are they inferior officials?

(a) Are the commission members subject to removal ?

Yes, but it is unclear who has removal power. It does not have to reside with the President as the functions of the commission fall under the quasi-legislative category.

(b) Are they limited in scope with regard to their duties?

Yes, they only deal with the sale, lease of port operations and port security.
(c) Are they limited in tenure?

No, the security of ports would remain a long-term issue with no foreseeable ending time.

They would not appear to be inferior officials and as such their appointment is not protected under Morrison and thus violates the appointments clause with regards to part C of the Act.

2. Is the removal process for the Port Security Commission legal?

(a)It doesn’t state who has the power to remove for just cause but just cause is an acceptable term under Morrison and Humphrey determined that the President did not have illimitable powers of removal as the PSC functions are quasi-legislative much like the FTC.

Is the appointment procedure for the Security Counsel lawful?

3. Are they inferior officials?

(a)Are the commission members subject to removal?

Yes, they are subject to removal by the intelligence committee of the House.

*Is it legal for the removal power to be in the House?
*No, because the official is purely executive in function.

(b)Are they limited in scope with regard to their duties?

Yes, they are only to investigate port operations sales.

(c)Are they limited in tenure?

Maybe, it is unclear whether a new counsel is appointed regarding each new deal or whether a single counsel is appointed with the power to review all current and future deals.

It is unclear whether the official is inferior due to lack of information.

4. Is the removal power based in the intelligence committee of the House legal?

(a) No, it violates the Presidents power to remove purely executive officials as provided for in Myers and Humphrey.

5. Did the Commission have the power to pass a rule requiring complete security reviews before any port operation sales?

(a)Yes, they have the power to pass rules regulating sales.

6. Can the White House refuse to obey?
(a)No, in MS v. Johnson, the court stated that once a federal law (rules passed by the commission are laws) was passed that the executive had to enforce them which would include his own actions.

7. Can the White House fire the Commission?

(a)It would seem to violate the good cause clause of the act.

(b)It would seem to go against Humphrey which states that the President does not have the power to remove officials who are acting in a quasi-legislative functions

No, the White House could not fire the commission.

8. Can Baltimore sue to enjoin the sales?

(a)No, it was decided in MS v. Johnson that the President of the US cannot be sued to prevent the carrying out of executive powers as that would violate separation of powers.

(b)That being said, once the sale has gone through and the case is ripe Baltimore can sue based on the constitutional question regarding the refusal to follow the laws passed by the Port Security Commission.

9. Can Britney sue the President?
(a)Yes, because it was not an official act.

Professor Davis said...

Good answers, propagandhi.

Anonymous said...

Can someone explain the holding in Morrison to me?

Propagandhi said...


Morrison limited Humphrey’s and put a for a “good cause” on the president’s removal power as well refined the appointment process with regards to inferior vs. principal officials who perform executive functions.

Issues: 1. Does the Act Violate Article III? 2. Does the Act violate the Separation of Powers doctrine by reducing the Presidents ability to control the prosecutorial powers wielded to the independent counsel? 3. Is the IC an inferior official? 4. Does the act interfere with the Presidents exercise of his constitutionally appointed functions? 5. Do interbranch appointments violate the Appointments Clause? 6 Does the Act violate the Appointments Clause?

Holding: 1. No, 2. No, 3. Yes, 4. No, 5. No, 6. No

Vote: 7-1

Author: Rehnquist

• Is the IC an “inferior” or “principal” officer
• “In our view the IC is clearly an “inferior” officer
o First, IC is subject to removal by the higher executive Branch
 The Fact that she can be removed by the AG indicates inferiority
o Second, She is empowered by the Act to perform only certain, limited duties.
 The grant of authority does not include any authority to formulate policy for the Government or Executive Branch, nor does it provide any administrative duties outside of those needed to operate her office.
o Third, she is limited in jurisdiction
 IC can act only within the scope that has been granted by the Special Division
o Finally the IC is limited in tenure
 Counsel is temporary

• Do Interbranch appointments violate the Appointments Clause?
o The language of the appointments clause admits no limitation on interbranch appointments.
o “As they think proper” clearly gives Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of law”

o Historically speaking:
 History of the clause provides no support for the plaintiff’s position.
• Madison felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in “Superior Officers below Heads of Departments”
• There was little or no debate on the question of whether the Clause empowers Congress to provide for interbranch appointments and there is nothing to suggest that Framers intended to prevent Congress from having this power.
o Such power is not unlimited
 If such provisions impaired the constitutional functions assigned to another one (aka does it violate separation of powers)
 If there was “incongruity” between the functions normally performed by the courts and their duty to appoint? (are you messing with the judicial function?)
• We thus disagree with the Court of Appeals decision that there is an inherent incongruity about a court having the power to appoint prosecutorial officers.
o Congress was of course concerned with the conflicts of interest that could arise in situations when the E Branch is called upon to investigate its own high-ranking officers.
• In light of the Act’s provision making the judges of the special division ineligible to participate in any matters relating to any IC they have appointed…we do not think that appointment of the ID by the court runs afoul of the constitutional limitation on “incongruous” interbranch appointments.

• Does the act conflict with Article III
o There can be no Article III objection to the Special Division’s exercise of that power, as the power itself derives from the Appointments clause, a source of authority for judicial action that is independent of Article III.

• Does that act violate the Separation of Powers Doctrine?
o First, does that act's restriction that the Attorney General can only remove the IC with “good cause” interfere with the Presidents exercise of his constitutionally appointed functions?
 “We cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority”
 We simply don’t see how the need for the IC to be terminable at the will of the President is central to the functioning of the EB.
 Nor do we think that the “good cause” overly burdens the Presidents power
 The decision to limit the removal power of the AG was essential to establishing the independence of the office.
o Second, taken as a whole does the Act violate S of P by reducing the Presidents ability to control the prosecutorial powers wielded by the IC.
 We have never held that the Constitution requires that the three branches “operate with absolute independence”
 Congress retained for itself no powers of control or supervision over an independent counsel.
 The AG has no duty to reply to the request to initiate an IC
 The power to appoint inferior officers such as the IC is not in and of itself and executive function.

• Does the act undermine the power of the EB or disrupt the proper balance between the branches by preventing the EB from accomplishing its assigned functions?
o No
o It is undeniable that it reduces the amount of control that the AG has or the Pres. Has through him nonetheless the Act give the AG several means of supervising or controlling the prosecutorial powers that may be wielded by the IC.
o His decision to not initiate the IC is up to his unreviewable discretion.
o Once the IC is appointed it must follow the Justice Department policy.

Scalia (dissenting):
• Re: Article II, Sec. 1
o Provides that not just SOME of the executive power but ALL of the executive power resides with the President

• Separation of Powers:
o Is the conduct of a criminal prosecution/investigation the exercise of purely executive power?
o Does the statute deprive the President of the US the exclusive control over the exercise of that power?
 The court seems to say yes to both of these but avoids concluding that the ACT is illegal based on these conclusions.
 The court concedes that the functions of the IC are executive but qualifies that by saying “in the sense that they …functions that typically reside with the EB.
• “In what other sense can one identify “executive power” except by reference to what has always and everywhere been conducted never by the legislature, never by the courts and always by the executive?
• There is no possible doubt that the IC fits this description.
o Governmental investigation and prosecution of crimes is an executive function.

 As to the 2nd question:
• The court could not assert that the act doesn’t deprive the Pres. of exclusive control of that power
• Court says “the pres has power via the AG who has some control.”
o That concession alone is enough to invalidate the statute.

• “It is not for us to determine, we have never presumed to determine, how much of the purely executive powers of the government must be within the full control of the President. The Constitution prescribes that they ALL are
• Is it unthinkable that the President should have such exclusive power even when the alleged crimes by him or his close associates are at issue?
o NO!! Congress has exclusive power over legislation even when what is at issue is it’s own exemption from certain laws and the courts have the same power to pronounce decisions on laws even those pertaining to say the lawfulness of a statute reducing their pay.

o A system of separate and coordinate powers necessary involves an acceptance of exclusive power that can theoretically be abused.

Anonymous said...

If the Framers intended the Supreme Court to have original jurisdiction over cases involving international relations, isn't that inconsistent with the opinion of Rehnquist in Goldwater vs. Carter that the case was not justiciable because it was a political question? That was international relations concerning the treaty with Taiwan, so wouldn't the Supreme Ct. have original jurisdiction based on the text of the Constitution in this case???

Anonymous said...

Sounds to me like that would be correct. To what extent the Supreme Court was meant to have say in foreign affairs I'm not sure, but the "no touch" policy Rehnquist seems to advocate does seem contrary to the original intent of the Constitution. Professor Davis mentioned this discrepancy briefly in class as I recall (the T/Th 11:30 class that is). However, the 11th Amendment does prevent them from hearing cases brought by foreign entities against one of the United States. Since the wording indicates a single State rather than the United States as a whole, I do wonder if it prohibits them from hearing a foreign suit against the United States as a whole.


Anonymous said...

Furthermore, if memory serves me, Professor Davis mentioned that this "nonjusticiable foreign policy" . . . policy comes from tradition rather than the text of the Constitution.


Anonymous said...

It seems to me like South Carolina v. Katzenbach hasn't really come up much. Since it is supposed to be on the test, can anyone inform me of a larger principle of the case I may be missing, other than that Congress can, under the 15th Amendment, selectively violate some States' sovereignty regarding nearly anything that affects elections and voting? Is that the only thing I am to take away from this case?


Anonymous said...

I believe in South Carolina v. Katzenbach, the main idea is that the insulation accorded by the Constitution to state rights is "not carried over when state power is used as an instrument for circumventing a federally protected right."


Anonymous said...

So in the Morrison case, the court ruled that inferior officials were defined by having these characteristics?

Subject to removal
Limited in scope with regard to their duties
Limited in tenure

"Any" or "All" of these characteristics makes them an inferior official?

Any other characteristics?

And how do the quasi status of a commision effect it's inferior official status?


Anonymous said...

In Morrison, the followin standard was established for inferior officers:

1)Subject to removal by a higher executive Branch official (in this case, the Attorney General)
2) Performs only limited duties (in this case, the officer is restricted mainly to investigation and prosecution of federal crimes, no other executive powers, or policy making powers)
3) Office is limited in jurisdiction, (in this case, officer is restricted only to federal officials suspected of federal crimes)
4) Limited in tenure (officer is appointed, and after task is finished dissolves, or dissolved by the special division)


Anonymous said...

By quasi statues, do you mean if an official is not purely executive, but quasi-judicial or quasi-legislative? This is not related to the Morrison case, but Humphrey’s Executor v. US. That case concerned whether FDR could constitutionally remove a member of the FTC. The standard set was that if such an official exercises purely executive functions, then he can (ex, postmaster general), but if not, then no.

These quizzes are getting more complicated. I should start going to class.


Anonymous said...

Tinker V. Des Moines could be overturned...