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Article 1 Section 1:
all legislative powers herein granted shall be vested is a Congress of the United States which shall consist of a Senate and House or Reps
Article 2 Sec 1:
the exec power shall be vested in the President of the USA
theory that the pres can exercise authority, which is independent from Congress and possibly immune from regulation
Reading: Inherent Presidential Power and Constitutional Structure (Neil Kinkoﬀ)
Central Thesis: The president does NOT have inherent powers
NO! Inherent power is contrary to constitutional structure
Central Question: question reformulated to ask whether the president holds power that is broadly or commonly beyond the authority of
Congress to limit.
How should the powers of the branches be interpreted? What case does he cite?
the structure implies limited government and a respect for separation of powers because the Constitution has enumerated
Marbury v. Madison: Constitution establishes the gov of limited and enumerated powers
Does the Structural Approach support inherent presidential power? What 4 argument in support of inherent presidential power?
Robust Inherent Authority: times that Pres can act contrary toward an act of Congress
Exclusive: the Constitution gives executive branch exclusive areas that the Congress cannot be involved in
Ineﬀectual Congressional Checks
Robust Inherent Authority: What case does he use to refute the argument?
Steel Seizue Case
Diﬀerent b/w implied and inherent powers? (pg 43)
for inherent powers, Congress can’t limit them or regulate them
Torture Memo: essentially allowed President to act and override Congress
Presidents Who Acted Contrary to Congress:
Harry S Truman
did Truman exceed authority when he seized steel mills to resolve a labor dispute?
2 legal issues: Take Care Clause and Commander-in-Chief Clauses of Article 2 of Constitution
Take Care: pres must execute laws faithfully
Commander in Chief
What statute did Truman cite to justify his actions according to Black?
trick question: no statute at all authorized the Pres to take possession of property as he did here
Taft Hartley Act:
Justice Black takes a formalist approach: straightforward ; rejects idea of ‘inherent powers’
What is Justice Jackson's criticism for the current method or approach for evaluating executive authority?
Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.
The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy
unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction
gap that exists between the President's paper powers and his real powers
"Inherent" powers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably
and without fixed or ascertainable meanings
What is Justice Jackson's (J.J.) test for Executive Power? How did he apply it to President Truman’s conduct in the Youngstown matter?
Part 1: Executive acts with Congressional approval? - courts says its ok
Part 2: Executive without the approval or the disapproval - analyze on case by case basis
Part 3: Executive acts with Congressional disapproval - court rules against Exec
According to C.J. Vinson, does the President possess inherent powers under Commander-in-Chief and Take Care Clause, if so, when are they are
triggered? Hint: the Davis Brief he cites to in Part III.
Yes. Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save
those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.
an emergency; there was no time to wait for the action of Congress."
According to Vinson, what is the constitutional practice between the Executive and the Legislative branches in times of emergency? Did Truman act in
keeping with this tradition in Vinson’s mind? Hint Part IV
The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the
subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things
and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields
which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the
Executive may move within them until they shall have been occupied by legislative action.
Yes - acting upon the “Take Care Clause”
preventing execution of the legislative programs for procurement of military equipment.
From reading Vinson’s opinion, what inherent powers could you identify from his historical investigation? What examples does he use?