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CONSTITUTIONAL LAW

CONSTITUTIONAL LAW. CLASS 16 February 13, 2007 More on Executive Power and Limits on Executive Power. War Powers Cases. 1. Executive Detention of Enemy Combatants 2. Trial of Enemy Combatants in Military Tribunals. Rasul v. Bush (2004) (CB p. 371).

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CONSTITUTIONAL LAW

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  1. CONSTITUTIONAL LAW CLASS 16 February 13, 2007 More on Executive Power and Limits on Executive Power

  2. War Powers Cases • 1. Executive Detention of Enemy Combatants • 2. Trial of Enemy Combatants in Military Tribunals

  3. Rasul v. Bush (2004) (CB p. 371) • Majority by: StevensJoined by: O'Connor, Souter, Ginsburg, BreyerConcurrence by: KennedyDissent by: ScaliaJoined by: Rehnquist, Thomas

  4. Hamdi v. Rumsfeld (2006) • Plurality by: O'ConnorJoined by: Rehnquist, Kennedy, BreyerConcurrence/dissent by: SouterJoined by: GinsburgDissent by: ScaliaJoined by: StevensDissent by: Thomas

  5. Hamdan v. Rumsfeld (2006) (CB p. 373) • Majority by: StevensJoined by: Souter, Ginsburg, Breyer; Kennedy (except Parts V, VI-D-iv)Concurrence by: BreyerJoined by: Kennedy, Souter, GinsburgConcurrence by: KennedyJoined by: Souter, Ginsburg, Breyer (only as to I, II)Dissent by: ScaliaJoined by: Thomas, AlitoDissent by: ThomasJoined by: Scalia; Alito (all but I, II-C-1, III-B-2)Dissent by: AlitoJoined by: Scalia, Thomas (only as to I – III)Roberts took no part in the consideration or decision of the case.

  6. LIMITS ON EXECUTIVE POWER • Non-delegation doctrine • 2 New Deal era cases enforced this doctrine

  7. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (CB p. 135, 386) • Chief Justice Charles Evans Hughes wrote the majority opinion, joined by 6 other justices • Justice Cardozo wrote a concurring opinion, joined by Stone

  8. Current Status of the Non-Delegation Doctrine?

  9. INS v. Chadha (1983) • Can Congress keep control of executive actions by the use of the legislative veto? • Majority opinion by CJ Burger, joined by Brennan, Marshall, Blackmun, Stevens, O’Connor • Concurrence by Powell • Dissent by White • Dissent by Rehquist, joined by White

  10. Clinton v. New York (1998) • Can Congress expand executive power? • Majority by: StevensJoined by: Rehnquist, Kennedy, Souter, Thomas, GinsburgConcurrence by: KennedyConcurrence/dissent by: ScaliaJoined by: O'Connor; Breyer (in part)Dissent by: BreyerJoined by: O'Connor, Scalia (in part)

  11. George W. Bush’s efforts to revive the line-item veto • Legislative Line-Item Veto Act of 2006 (HR 4890) • Testimony at: http://www.cbo.gov/showdoc.cfm?index=7079&sequence=0 • Passed the House in 2006, killed in the Senate in January 2007

  12. SLICE Act of 2007 (HR 595) • Introduced January 2007 by Mark Udall (D-Colo) • Authorizes president to identify specific provisions he thinks should be cut and then requires Congress to vote on those.

  13. Buckley v. Valeo (1976) (CB p. 403) • Per curiam opinion • Can Congress appoint executive officers (majority of members of FEC)?

  14. Removal Power • Impeachment of Andrew Johnson after he fired Secretary of War Edwin Stanton

  15. Myers v. United States (1926) • Chief Justice William Howard Taft (a former president from 1909-1913) wrote the majority opinion joined by Van Devanter, Sutherland, Butler, Sanford, StoneDissent by: HolmesDissent by: McReynoldsDissent by: Brandeis

  16. Humphrey’s Executor v. United States (1935) • Unanimous opinion written by Justice Sutherland

  17. Wiener v. United States (1958) • Did the Court apply the Humphrey’s or Myers rule? • Unanimous opinion by Justice Frankfurter

  18. Bowsher v. Synar (1986) (CB p. 404) • BURGER delivered the opinion of the Court, in which BRENNAN, POWELL, REHNQUIST, and O'CONNOR joined. STEVENS filed an opinion concurring in the judgment in which MARSHALL joined. WHITE and BLACKMUN, filed dissenting opinions

  19. Morrison v. Olson (1988) (CB p. 410) • Justice Rehnquist delivered the majority opinion • Justice Kennedy did not participate • Justice Scalia dissented

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