Con Law P. 300-United States v. Curtiss-Wright Export Corp.,2. Facts: Congress passed a joint resolution authorizing the President to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-Wright was indicted for conspiracy to violate the embargo.

3. Procedural Posture: Curtiss-Wright challenged the resolution as being an unconstitutional delegation of legislative power to the President. The lower court sustained the challenge.

4. Issue: Whether the resolution is unconstitutional as a delegation of legislative power to the President.

5. Holding: No.

6. Reasoning: The resolution may have been unconstitutional if it related solely to internal domestic powers, where the President’s power is more constitutionally limited. However, the origin and nature of the President’s domestic and foreign powers is very different. The President’s foreign power is not dependent solely upon the affirmative grants of the constitution. The President has the power to negotiate treaties, and is the representative of the U.S. in international relations. He is in a better position than Congress to handle foreign affairs because he is privy to classified information. Thus, it is unwise to narrowly limit the President’s foreign power.

7. Notes: The War Powers resolution of 1973 now provides that Congress shall be consulted beforehand “in every possible instance” when the President is introducing troops into situations where hostilities are imminent. Afterwards, he must report within 48 hours the reasons and constitutional or statutory basis for his action, and any other information that Congress may request. Also, he must continue to consult with the Congress on a periodic basis. Then, if Congress does not declare war, or otherwise granted statutory power, the President must remove the troops within 60 days, or immediately if directed by Congress.

INS v. Chadha,2. Facts: A section of the Immigration and Nationality Act provides that the Attoryney General could suspend the deportation of a deportable alien if the alien met specified conditions and would suffer “extreme hardship” if deported. However, the act also had a provision which provided for legislative veto by one house if the Congress disagreed with the Attorney general’s decisions as to any particular alien. Chadha was an Indian whose education was not yet complete, but whose Visa had run out.

3. Procedural Posture: The Court of Appeals found that the provision was unconstitutional as a violation of separation of powers.

4. Issue: Whether the one house legislative veto provision in the act was unconstitutional as a violation of separation of powers since it did not provide for bicameral support or presentation to the President.

5. Holding: Yes.

6. Majority Reasoning: [Burger] The fact that a given law is efficient will not save it if it is contrary to the constitution. The constitution is very explicit about its grant of powers among the executive and legislative branches. The framers were very clear that it was paramount that the legislative power require bicameral support and presentation to the President (except for some minor exceptions not relevant here). The act is primarily legislative in nature. Although it delegates some broad legislative authority to the executive branch, it is

no less legislative. As such, it requires bicameral support and presentment.

7. Concurrence Reasoning: [Powell] felt that Congress was acting in a judicial role in providing for judicial-type review of the actions of the executive branch.

8. Dissent Reasoning: [White] felt the majority opinion was too broad because it read on all legislative vetoes, which weren’t implicated by the present fact situation. The power to exercise legislative veto is not the power to write new law without bicameral support or presidential consideration. The veto must be authorized by statute and may only negative what an Executive deparment agency has proposed.

BOWSHER

2. Facts: The Gramm-Rudman-Hollings Act established maximum annual permissible deficits designed to reduce the federal deficit to zero by 1991. If needed to keep the deficit within the maximum, the Act required the OMB and the CBO to make recommendations to the Comptroller General as to the budget reductions necessary in each program. The Comptroller General office was created by the budget and accounting office, in an act that required nomination by the President, but removal [for cause] by a Congressional resolution, subject to presidential veto.

3. Procedural Posture: The act establishing the Comptroller General office was challenged as being a violation of the separation of powers because it gave Congress the power to remove an official having executive powers.

4. Issue: Whether the act establishin the Comptroller General’s office is unconstitutional as a violation of separation of powers.

5. Holding: Yes.

6. Majority Reasoning: Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. To permit an officer controlled by congress to execute the laws would be, in essence, to permit a congressional veto of the kind struck down in Chadha. The Comptroller is an executive officer because of his duties. The scope of the reasons allowable for his removal are broader than that allowed for impeachment, which is only for “treason, bribery, or other high crimes and misdemeanors.” Even though it may be a small chance of removal in practice, the Comptroller is not sufficiently free from congressional influence. Thus, the fallback provisions of the Act, wherein Congress itself makes the ultimate budget decisions by joint resolution, must be activated.

7. Dissent Reasoning: [White] The removal by Congress of the Comptroller is of such minimal practical significance that it presents no threat to the scheme of separation of powers. It requires 2/3 approval by both houses to override a presidential veto of the Comptroller’s removal.

MORRISSON

2. Facts: The Ethics in Government Act of 1978 provided that The Attorney General may ask for the appointment of a special counsel by a Special division of three Circuit Judges in order to investigate and prosecute high-ranking government officials for violations of federal crimes. Once appointed, the Special counsel can only be removed by the Attorney General

personally (not the president) and only for “good cause” (not at will).

3. Procedural Posture: A group of persons moved to quash subpoenas issued by the Special counsel, claiming that the Act was unconsitutional as a violation of separation of powers.

4. Issue: Whether the Act is was unconsitutional as a violation of separation of powers because it limits the President’s authority to remove an executive officer.

5. Holding: No.

6. Majority Reasoning: The special counsel, due to the limited tenure, duration, and duties of her office, is an “inferior officer” for Appointment clause purposes. As such, her appointment may be vested by congress in the courts. The court has never held that the Constitution prevents Congress from imposing limitations on the President’s power to remove al executive officials simply because they wield “executive” power. The power to vest appointment in other departments implies the power to limit and regulate removal. The imposition of a “good cause” standard is not unduly limiting. The president’s need to control the Special Counsel is not so central to the functioning of the executive branch as to require as a matter of constitutional law that the special counsel be terminable at will by the President. This case does not involve a usurpation of executive power by Congress. The attorney general still has the power to refuse to ask for appointment of a special counsel.

7. Dissent Reasoning: [Scalia] The framers of the constitution intentionally vested all of the executive power in the president. As such, any person executing purely executive power must be under the exclusive control of the President, and thus terminable at will. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. The majority has replaced a constitutional requirement with an unprincipled “balancing test” having no guidance.

MISTRETTA

Brief Fact Summary. Congress adopted the Sentencing Reform Act of 1984 (Act) in an effort to address the widespread disparity in the scope and extent of punishment in criminal cases in the United States. The Act created the United States Sentencing Commission devise guidelines for sentencing, and John M. Mistretta (Petitioner) challenged this as an unconstitutional delegation. 

Synopsis of Rule of Law. The “intelligible principle test” applies to congressional delegations. As long as the act by Congress includes an intelligible principle to which the delegee is directed to conform, the legislative action is not a forbidden delegation of legislative power. The Supreme Court of the United States has ruled it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which it to apply it, and the boundaries of this delegated authority.” 

Facts. Petitioner was indicted in the United States District Court for the Western District of Missouri on three counts centering in a cocaine sale, and moved to have the promulgated guidelines ruled unconstitutional on the grounds that Congress delegated excessive authority to the Sentencing Commission to structure the guidelines. 

Issue. By delegating the power to promulgate sentencing guidelines for every federal criminal offense to the Sentencing Commission, did Congress grant excessive legislative discretion in violation of the nondelegation doctrine?

Held. No. The Act included sufficient guidelines for the Commission to follow. Congress directed the Commission to consider a list of seven factors in its formation of offense

categories: the grade of the offense; aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a sentence might have; and the current incidence of the offense. Dissent. While called “guidelines,” they had the full force and effect of laws, prescribing criminal sentences. Because the scope of the delegation is largely uncontrollable by the courts, we should be particularly rigorous in preserving the Constitution’s restrictions that deter excessive delegation. Concurrence. None. 

Discussion. The Act set forth more than an “intelligible principle” or minimal standards, and was a constitutional delegation of authority by Congress.

Summary of United States v. Nixon (1974)Relevant Facts: See Watergate scandal.  Agents of CREEP broke into Democratic National Headquarters and were caught in the act.  It was slowly uncovered that President Nixon authorized the break-in, as well as several other incidents.  Former White House counsel John Dean named Nixon himself in an ensuing investigation into the cover-up, and impeachment proceedings were brought against the President.As a result of a grand jury indictment against 7 defendants, most notably former Attorney General John Mitchell, the President was named as an unindicted co-conspirator and was ordered by a District Court upon subpoena, to produce certain tapes, memoranda, and other writings related to specific meetings associated with the scandal.President released transcripts to some of the tapes and then moved to quash the release of them all together on grounds of executive privilege.  District Court denied motion.  The Court took the case before the Court of Appeals could hear it, and then affirmed the lower court and remanded it for examination of the subpoenaed documents.Issue: Under constitutional law, may the President of the United States, upon his non-indictment but association with a conspiracy which violates federal law, invoke executive immunity to interpose a District Court order which directs him to produce certain documents and recordings of meeting associated with this conspiracy?Holding: No.  When the ground for asserting privilege as to subpoenaed  materials sought for use in a criminal  trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process law in the fair administration of justice.  The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.Court’s Rationale/Reasoning: The Court has at the very best before this case interpreted the explicit immunity conferred by express provisions of the Constitution on members of Congress by the Speech and Debate Clause of the Constitution, an express power.  Thus, if the Court were to construe and delineate claims under express powers, then the Court should have the authority to interpret claims with respect to powers alleged to derive from enumerated powers.  President claims (1) valid need for protection of higher authority and those who advise him; and (2) separation of powers insulates the President from judicial subpoena in an ongoing criminal investigation.Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the Court finds it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obligated to provide.  As for separation of powers, they were not meant to stand by themselves, as there are cases in which the powers co-mingled with one another.Presidential communication is protected, however when the communication is not of a governmental nature, and there is a public interest in those communications, then the immunity granted by the Constitution does not exist.  This is important to the adversarial system we have in this country.  There must be a full disclosure of all of the facts, within the

framework of the rules of evidence.  This is essential to the carrying of justice.  Both the 5th amendment (due process) and the 6th amendment (right to face adversaries is part of this carrying of justice.In applying the balance test, Presidential communications are indeed protected generally, but in the instance of a criminal case, the protection cannot remain, for it would “cut deep into the guarantee of due process law and gravely impair the basic function of the courts.”Rule: Balancing test weighs the importance of the general privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal justice.Important Dicta:  No court has defined the scope of judicial power specifically related to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution.

NIXON V. FITZ

2. Facts: Fitzgerald lost his management position with the Department of the Air Force after “blowing the whistle” on significant budgetary overruns on the building of a military transport plane.

3. Procedural Posture: Fitzgerald sued the President and several of his officials for damages, alleging violation of his First Amendment and other statutory rights due to his firing.

4. Issue: Whether the President is entitled to absolute immunity from damages liability predicated on his official acts.

5. Holding: Yes.

6. Majority Reasoning: [Powell] The absolute [rather than qualified] immunity is required due to the unique position of the Presidency. The President must not be diverted from a proper exercise of discretion for fear of being subject to a lawsuit for private damages. The President is required to make decisions every day that would “arouse the most intense feelings,” and so must enjoy absolute immunity for his official acts. There may be cases where the Congress could take some affirmative action to subject the President to personal jurisdiction, but the court would have to weigh the constitutional weight of the interests to be served with the danger of intrusion on the authority and function of the Executive Branch. There are other ways to keep the President from abusing power, namely the press, impeachment, re-election, and personal reputation.

7. Dissent Reasoning: [White] Attaching absolute immunity to the office of the President, rather than to particular activities that the President might perform places the President above the law. The scope of immunity should be determined by the function, not the office, and the dismissal of employees does not fall under a constitutionally assigned executive function which would be substantially impaired by the possibility of a private action for damages.

8. Notes: In Harlow v. Fitzgerald, the court refused to extend blanket immunity to the top Nixon aids involved in the same conspiracy as charged in the above case. Qualified immunity was the proper standard, unless perhaps the aid was entrusted with “discretionary authority in such sensitive areas as national security or foriegn policy.” However, the court refused to give the Attorney General absolute immunity even while engaged in actions related to national security in Mitchell v. Forsyth.

CLINTON v. JONES

Procedural Posture: Paula Corbin Jones filed suit in federal district court in Arkansas against William Jefferson Clinton and Arkansas state trooper Danny Ferguson over an incident that was alleged to have occurred on May 8, 1991. Clinton filed motions asking the district court to dismiss the case on grounds of presidential immunity and prohibit Jones from refiling the suit until after the end of his presidency. The district court rejected the presidential immunity argument but allowed that no trial would take place until Clinton was no longer president. Both Clinton and Jones appealed to the U.S. Supreme Court, which granted certiorari.Disposition: In a 9-0 decision, the court held in favor of Jones, affirming the district court’s right to decide this case.Facts: Bill Clinton was elected to the presidency in 1992 and reelected in 1996. Prior to the presidency, Clinton held the office of governor of Arkansas. In 1994, Paula Corbin Jones filed suit in federal district court in Arkansas against Clinton and Arkansas state trooper Danny Ferguson over an incident that was alleged to have occurred at the Excelsior Hotel on May 8, 1991, in Little Rock. Jones, then an employee of the state, was working at the registration desk of a conference in which Governor Clinton delivered a speech. Jones alleges Trooper Ferguson told her that Governor Clinton wanted to see her in his room, and Ferguson escorted her to the room. Once in the room, Clinton begins to make unwanted sexual advances towards Jones. Clinton denies the allegations and claims that the lawsuit is politically motivated.Relevant Provision of Constitution: Article II, specifically separation of power principles.Question: Whether the constitution protects a sitting president from a lawsuit that seeks damages from an unofficial act that occurred before becoming president?Holding: The Federal Constitution did not require that federal courts, in all but the most exceptional cases, defer civil damages litigation against the President until the President’s term ended when such litigation was based on actions allegedly taken before the President’s term began, in part because (a) a temporary immunity from suit for unofficial acts, grounded purely in the identity of the President’s office, was unsupported by precedent of the Supreme Court, and (b) the doctrine of separation of powers did not require federal courts to stay all private actions against the President until the President left office; and (2) it was an abuse of discretion for the District Court, which had jurisdiction to decide the case at hand, to defer the trial until the President left office, in part because (a) such a lengthy and categorical stay took no account of the individual’s interest in bringing the case to trial, (b) the decision to postpone the trial was premature, and (c) no impingement upon the President’s conduct of his office had been shown.Reasoning: (Stevens) There is no support for immunity for unofficial conduct. The doctrine of separation of powers does not require federal courts to stay all private actions against the president until he leaves office. The doctrine of separation of powers is concerned with the allocation of official power among the three co-equal branches of government.Concurrence: (Breyer) The constitution does not automatically grant the president immunity from civil lawsuits based upon his private conduct. The president cannot simply rest upon the claim that a private civil lawsuit for damages will interfere with the constitutionally assigned duties of the executive branch… without detailing any specific responsibilities or explaining how or degrees.

CLASS NOTES:

Art 2 Sec 2 Cl. 2

- President has power to make treaties and appoint ambassadors, public min, officers of the US (Superior Officers) with the advice and consent of the senate (confirmed by the senate)

- The congress may vest the appointment of such inferior officers

Bowsher

- OMB and CBO calculate budget deficit- if it exceeds max, they indicate amt of reductions to be made

- Comptroller gen is given exec powers under the act (power to make reductions)- Congress can impeach comptroller—and in statute, can be removed by joint

resolution for malfeasons and maladministration - Comptroller, as executive officer, is implementing a statute of congress