Chapter 1 Introduction What are the issues of the day?

Congressional Inaction

How can the president make law by "going first"?

What are the reasons for congressional inaction?

Do they all equally support president action?

What Constitutes Congressional Acquiescence?

Does it matter if Congress considers the matter after the president acts and still does not pass legislation?

What if they pass legislation on the topic and do not address the president's actions

What if this has been going on for a long time, since the early Congress?

Why does acquiescence by the early Congress matter more?

Does it matter if the president's action is Constitutional gloss, i.e., something that is not contemplated by the Constitution, as opposed to just something that Congress has not thought of?

What if it is forbidden by the Constitution?

Dames & Moore v. Regan, 453 US 654 (1981)

What was the Iranian hostage crisis?

What did President Carter have to agree to as a condition of the hostages being released?

What specific power does the International Emergency Economic Powers Act give the president that was used as part of the resolution of these claims.

Legal Authority

What did Carter do that the court found was not specifically authorized by any statute?

What legal authority did Congress give the president to resolve claims against foreign governments?

Did Congress review President Carter's actions?

Did Congress take any action to counter the President's actions?

Why does the court say this inaction is acquiescence?

How are claims against the states and federal government handled?

Is there any international law right to private claims against states?

Private Claims Affecting Foreign Policy

Should private claims be allowed against foreign governments?

How can these effect diplomacy?

What about prosecutions of heads of state?

The President's Emergency Powers Post Youngstown

What are examples of emergency powers that were used post 9/11?

Does Youngstown pose a real obstacle to presidential emergency powers?

Public Citizen v. DOJ (Advisory Committee Act and Judicial Appointments)

Kennedy separates the cases into those that involve a clear conflict with constitutional allocation of powers between the branches and those that do not.

He says there should be no compromise when the constitution clearly allocates a power to one branch, but there must be when the authority is ambiguous.

The pardons clause is an example of a power that is exclusively the presidents and would brook no interference from Congress.

Does the advisory committee act affect the president's appointment's power?

Kennedy thought it did and that it violated the Appointment's Clause

Does this give us any additional information about Youngstown?

Chapter 4 - The President’s National Security Powers

Learning Objectives

What is a delegation question?

Why does the court have different standards for delegation of foreign versus domestic powers.

What is the "sole organ" doctrine?

Should there be a different standard for foreign affairs than domestic governance, and why?

US v Curtis-Wright, 299 US 304 (1936)

What is the procedural posture of this case?

Check the full text if you are not sure

What are the defendants accused of?

Why do they want the congressional delegation of power declared unconstitutional?

This is 1936 - what other delegation doctrine cases are before the court?

How does Chadha affect the use of joint resolutions?

What can they be used for that has legal force?

Bolivia

What is the Monroe Doctrine?

Why did we care about Bolivia?

What is going on in Bolivia and how does the joint resolution address it?

Is this the only time were involved with Central and South America?

The Joint Resolution

Where do the underlying events take place, in or outside the US?

Does this court see this a foreign affairs issue?

Why is that critical?

Think of what else is going on with the delegation doctrine at this time

The Delegated Powers

What findings does the president have to do to make under the joint resolution?

What does he have to do with the findings to trigger the joint resolution?

What penalties does the law provide?

Why do the penalties have to come from Congress?

Why is an issue at Guantanamo?

The Presidential Declaration

Now, therefore, I, Franklin D. Roosevelt, President of the United States of America, acting under and by virtue of the authority conferred in me by the said joint resolution of Congress, do hereby declare and proclaim that I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and that I have consulted with the governments of other American Republics and have been assured of the cooperation of such governments as I have deemed necessary as contemplated by the said joint resolution; and I do hereby admonish all citizens of the United States and every person to abstain from every violation of the provisions of the Joint Resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted.