L32 Pol Sci 331 Study Guide - Final Guide: Presentment Clause, Katherine Harris, Appointments Clause
13 Dec 2016
School
Department
Course
Professor
Jack Broitman
Con Law Final Study Guide- Cases
Presidential Power:
I. Bush v. Gore (2010, 5-4, Per Curiam)
A. Facts
1. Everyone knew the election of 2000 between Bush and Gore would be very close and
would come down to Florida
2. In Florida they had a system of counting “undervotes” (votes where they couldn’t
figure out what the voter wanted)
a. These under-votes possibly occurred because of: old people not pushing hard
enough, machine malfunction, confusion with the ballot layout
b. Usually these wouldn’t matter, but since the election was so close these under votes
mattered
3. The republican secretary of state (Katherine Harris) wants to certify the votes in favor
of Bush and also by the safe harbor date (Dec 12th where congress will respect elector’s
decisions)
a. According to State legislature (where elector power resides), the Fl. Sec of state has
authority in this matter
4. Al Gore wants the under votes counted by hand in democratic counties
5. Harris goes to the Fl. Supreme court to try and certify the votes, but the court says no
and allows the recounts
6. The Bush team (lawyer Ted Olson) takes the issue to the SC saying that the Fl. SC has
violated Article II of the constitution (AII §1 cl. 2)
a. They claimed that the FL. SC had taken election law into its own hands, when the
state legislature is the only one with authority to make electorate rules, and that the
court was exceeding their constitutional authority
b. 5-4 the USSC agrees with Bush and sends the case back to the Fl. SC telling them
to follow state law (aka don’t make anything up, do what the law says)
7. Fl. SC then orders a recount of all under-votes in the state with the standard (according
to the Florida law) to find the “discernible intent of the voter”
a. Bush then goes back to the USSC arguing that this policy violated the equal
protection clause of the 14th amendment because the standards varied greatly within
and among precincts
b. Since there were no uniform specific standards, there were often discrepancies of
how votes were counted (“hanging chads” and other crazy voting things), and
therefore there was no equal treatment
B. Statute at Hand
1. First: Article II §1 cl. 2 (giving state legislatures the power to determine how to
manage electoral college system in that state)
2. Second: Amendment 14 (equal protections clause)
C. Questions
1. Did the Fl. SC violate federal law by altering election processes in place prior to
election?
2. Did the FL. SC violate the equal protection clause of the 14th amendment when it
ordered a recount to take place without setting single uniform standard for determining
voter intent?
D. Outcomes with Reasoning
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1. The SC then stops the recounts and effectively makes Bush the POTUS
a. The Per Curiam opinion (not signed by any justice but approved by 5-4 majority)
argued that there wasn’t enough time to get the votes in by the “safe harbor”
deadline
• There was consensus that uniform standards were required and that the different
standards were a violation of equal protection
• Note that no where in the Fl. State constitution did it specify that vote counts
and certifications had to be in by the safe harbor deadline, they just wanted it
b. Many dissents and arguments against this decision, believe that there could have
been time to send the decision back and allow a recount
E. Rule or Legacy
1. Con law wise, this isn’t that big of a ruling
2. Policy wise, this was huge and one of the most controversial cases ever, it was a
terrible decision
a. Some people put it up there with Korematsu (SC allowing Japanese internment),
and Plessy v. Ferguson (separate but equal)
3. Big controversy in time (see Allegations)
4. In the end and despite all the allegations against this case, things weren’t so bad in the
end
a. There was no coup, Gore accepted the loss (etc)
II. In Re Neagle (1890, 6-2, Miller)
A. Facts
1. POTUS appointed Neagle as a bodyguard for a supreme court judge without the
authorization of congress
a. Did this just on executive power
2. If no such executive power exists Neagle is a murderer, if Neagle is an authorized
marshal, he was doing his job
B. Statute at Hand
1. Article II “take care” clause
C. Question
1. Can the president authorize a bodyguard to protect a justice without the express
approval of congress/on his own authority?
D. Outcomes with Reasoning
1. At the time 2 justices dissented in this case (when dissents weren’t that common)
a. They argued that there was no law from the executive or courts allowing this
b. Therefore, the power to do so must be traced from congress or it doesn’t exist
c. They take a mere designation of office view → the president’s job is to execute the
law → since there was no law (nothing for take care to enforce) the president could
not do this
2. The majority held that the POTUS acted lawfully
a. A weak argument- if judges are being killed then the POTUS can’t do his job (tying
into execution of the law)
• The job of the POTUS is to protect the government and people (rights, duties,
obligations) as long as he isn’t going against the constitution or congress
b. Stronger argument: court read the “take care” clause like a necessary and proper
clause for the POTUS
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find more resources at oneclass.com
• Possibly did this because they were worried about themselves, and we have
marshals in courts today
E. Rule or Legacy
1. General grant of power view in the courts:
a. If it is necessary for the POTUS to “take care” of the nation, he can go beyond his
enumerated powers/what congress says
Domestic Powers of the President:
III. Clinton v. United States (1998, 6-3, Stevens)
A. Facts
1. History of POTUS wanting a line-item veto as a way to control budget and spending
2. Given to Clinton and he uses around 80 times, and scratches out budget items for a NY
hospital and tax breaks to farmers in Idaho
a. These petitioners consolidated their cases in a federal district court and since they
had a clear injury (and tangible stake and redressability), they were granted
standing when appealed to the SC
B. Statute at Hand
1. Line Item Veto Act vs. the Presentment Clause (A1§7)
C. Outcomes with Reasoning
1. Stevens invalidates the line-item veto act
a. He argues that it violates the presentment clause because the POTUS is essentially
writing a new law by scratching out expenditures
b. Since a bill must be passed and presented in a complete form, the POTUS is
writing new laws by altering the ones that passed through congress and were
already presented
c. An activist/aggressive court move to strike down the law
2. Critiques of Stevens’ Opinion
a. Public policy consideration critique: Congress gave up power here to the POTUS to
cancel expenditures and help the POTUS avoid wasteful spending
• This would get rid of excessive pork barrel projects and earmarks
• The line-item veto was congress’ means for remedying the dysfunctional
system
• Counterpoint: in a democratic system, people can vote representatives out of
office if they don’t like how things are working with spending
b. Breyer’s Dissent: the line-item veto act was an experiment run by the government,
approved by the congress and POTUS, and might work
• Breyer is less worried about tyranny, and is more concerned with pragmatic and
functional use of the law (improving democracy)
c. Scalia’s Dissent
• People are “faked out” by the term veto, it is just a refusal to spend money, and
there is a tradition of presidents refusing to spend money
• Executive discretion in executing the law would permit this
• The law could only be unconstitutional as an illegal delegation of power (if
illegally delegating legislative power to the POTUS, and depending on whether
Congress says spent at POTUS discretion or mandatory)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Sec of state has authority in this matter: al gore wants the under votes counted by hand in democratic counties, harris goes to the fl. Supreme court to try and certify the votes, but the court says no and allows the recounts: the bush team (lawyer ted olson) takes the issue to the sc saying that the fl. Sc has violated article ii of the constitution (aii 1 cl. Sc telling them to follow state law (aka don"t make anything up, do what the law says: fl. 2 (giving state legislatures the power to determine how to manage electoral college system in that state: second: amendment 14 (equal protections clause, questions, did the fl. Sc violate federal law by altering election processes in place prior to election: did the fl. Congress says spent at potus discretion or mandatory: stevens avoids the unconstitutional delegation of power argument because the.
