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Takings in National Security Emergencies

Takings in National Security Emergencies. What about regulatory takings, i.e., when someone cannot get paid or complete a business deal because of changes in policy in dealing with a foreign country? Is this the same as if the government actually took the property for direct use?

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Takings in National Security Emergencies

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  1. Takings in National Security Emergencies • What about regulatory takings, i.e., when someone cannot get paid or complete a business deal because of changes in policy in dealing with a foreign country? • Is this the same as if the government actually took the property for direct use? • Would Truman have had to pay for the costs related to the steel seizure if the court had found that he had the authority for the seizure? • Would the result be different for the seizure of property which is then used by the government?

  2. LIMITATIONS ON CONGRESSIONAL WAR POWERS

  3. Lovett v. US, 328 US 303 (1946) • What did congress use a rider in the spending bill to do? • What due process does this deny them? • Why is this a bill of attainder? • What is the general principle? • Can you use appropriations to accomplish things that Congress does not have the power to do directly? • What about the federal ban on paying for abortions? • How would such a ban be distinguished from this case?

  4. INS v. Chadha 462 U.S. 919 (1983) • What was the legislative veto? • What was the separation of powers issue? • Why does this prevent Congress from having legally binding resolutions? • What is the only joint resolution that does have legal effect?

  5. May Congress use Appropriations to Control Foreign Policy? • What is the problem in enforcing this? • What if congress just shuts down the state department? • Why do the use of omnibus bills make it difficult to fight about specific appropriations riders? • If congress is prohibited from using appropriations to mess with foreign policy, does it follow that the president may divert money from other appropriations to accomplish foreign policy purposes?

  6. Reallocation of Appropriations • What are the constitutional questions posed by the president reallocating appropriated money to different uses? • How can this be stopped in specific cases? • What recourse does Congress have to punish the president? • Is this likely?

  7. Other Legislative Controls • durational limits on authorizations (‘‘sunset’’ provisions), • joint resolutions of approval or disapproval (requiring presentment, unlike concurrent resolutions), and • report-and-wait rules that require reporting to Congress for some specified period before executive action becomes legally effective. • What if the president ignores the joint resolution or the reporting requirement?

  8. Line Item Veto • What is a line item veto? • Why would congress give this to the president? • What is the constitutional problem with a line item veto? • Why did the founder's not think about a line item veto • What did they anticipate about spending bills? • What do does an OBRA spending bill look like? • Does Congress have a way to give the president flexibility? • What problems would this cause with secret budgets for the CIA and NSA?

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