Constitutional Crises and Executive Branch Overreaching

1. Constitutional Crises and Executive Branch Overreaching Phil Weiser University of Colorado School of Law June 17, 2009

2. Overview • My Top Ten List • Balance of Power and Separation of Powers • Overarching Themes of Executive-Judicial Branch Conflicts • The Most Dangerous Branch?

3. Counting Down . . .

4. 10

5. 9

6. 8 “John Marshall has made his decision, now let him enforce it”

7. 7

8. 6 • "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

9. 5

10. 4

11. 3

12. 2

13. 1

14. Separation of Powers v. Balance of Powers • In a true balance of powers case, the legislative and executive branch can battle it out using tools provided to one another. • In the case of a war waged with a declaration of war, Congress has the ability to cut off funds for the war. Congress has sought to limit executive prerogatives with the War Powers Act. • In separation of powers, the courts will step in to prevent the executive branch from exercising legislative power (i.e., lawmaking) and vice versa. • In practice, this doctrine has operated more to limit legislative power (including preventing the legislative veto from being used) than executive branch power (because of the lack of a non-delegation doctrine). The exception is the line item veto.

15. Overarching Themes • Cases generally arise when executive branch acts without legislative or constitutional authority (Article II power at lowest ebb). • Military or security threats are often premise for executive branch claims of authority, under “Commander-in-Chief” clause or “inherent authority.” • Judiciary more likely to act after the fact, i.e., once the exigency is passed. But see Pentagon Papers case. • The complexities of modern social and economic problems have led to an accretion of executive branch authority. See TARP.

16. The Most Dangerous Branch? • The checks on the executive branch depend on an active legislative branch (i.e., willing to investigate), an effective press (e.g., Woodward and Bernstein), and an engaged public. • The judiciary will only rarely be willing to conclude that the President has violated the law and, even then, almost certainly after the damage is done.

17. Questions?