The Executive: Structure & Major Cases

1. Lecture 9The Executive Part 1: Overview and Structure

2. Major Cases this Chapter • Bush v. Gore (2000) • In re Neagle (1890) • City of Clinton v. New York (1998) • Morrison v. Olson (1988) • National Labor Relations Board v. Canning (2014) • Myers v. United States (1926) • Humphrey’s Executor v. United States (1935) • United States v. Nixon (1974) • Clinton v. Jones (1997) • Ex Parte Grossman (1925) • Murphy v. Ford (1975) • United States v. Curtiss-Wright Export Corp. (1936)

3. This lecture • We will cover pages 183-198 • Topics • Overview of the Executive • Article II • Structure • Disputed Elections

4. The Executive • Powers for the President can be found in Article II • Some of the wording of the language is vague • Faithful execution of laws • Commander in chief of armed forces • Nominations of judges and other officials, including the cabinet • With Senate approval • The power of the Presidency has grown • Weak executives after 1776 created desire for a stronger one at the federal level by the time of the Constitution in 1787 • Remember that our current Constitution is our second one

5. What is the grant of power? • Grant of Power • A mere designation? • Limited to specific grants in Article II, sections 2 and 3 • Think back to Article I, Section 8 arguments on enumeration of powers- did listing specific ones mean to exclude all others? • A general grant of power? • Hamilton took the broader view again • Steward of the people

6. Structure of the Presidency • Selection • Requirements • 35 years old • Natural born citizen • Resident of the United States for 14 years prior • Same requirements for VP (12th Amendment) • Is by an electoral college • Each state gets votes equal to its total congressional delegation • State legislatures initially selected these electors • Today, they merely rubber stamp the popular vote of a state (except Nebraska/Maine) • 12th Amendment due to the election of 1800 • Change from two votes per elector to one each for President and Vice-President

7. More on Selection • If no one gets a majority • The House decides among top five • Each state delegation gets one vote • Congress also decides disputes • Prior to 2000, only three elections produced a winner of the electoral college that did not also win the popular vote • 1824- Adams • 1876- Hayes • 1888- B. Harrison

8. Removal • Removal • Impeachment for high crimes and misdemeanors • This is more like an indictment • The definition is sort of vague • Majority vote in House • 2/3 vote of Senate after trial presided over by the Chief Justice • Only two Presidents ever impeached- A. Johnson and Clinton • Both not convicted • Nixon would have been impeached and convicted so he resigned • Maybe Harding if he wouldn’t have died too • Congress did censure Andrew Jackson, but it was expunged later • No other penalties can the President by imposed with by Congress

9. Tenure and Succession I • Tenure and Succession • A four year term • Takes office January 20 (see 20th Amendment) • Two term limit (see 22nd Amendment) • Lifetime limit • A term of two years or more counts as a term • Presidential disability (see 25th Amendment) • The Vice President can take over if the president says to the President of the Senate and House Speaker he is unable to discharge his duties temporarily • 3 times, all colonoscopies • This can also happen if the Vice President and majority of the Cabinet vote that they President is unable to discharge his duties • Congress must vote on this within 21 days by a 2/3 vote to make the Vice President acting • The President may also submit a recovery letter

10. Tenure and Succession II • More on the 25th Amendment • Allows for replacement of the Vice-President • By confirmation of both Houses of Congress • Gerald Ford • Previously, the position would be left vacant • After the VP, the line of succession is set by Congress • Speaker, Senate President, Secretary of State, Treasury, Defense, AG, Interior, Agriculture, Commerce, Labor, HHS, HUD, Transportation, Energy, Education, VA, Homeland Security • Al Haig incident • Defense secretary • Cabinet member left behind

11. Bush v. Gore (2000) • Bush v. Gore (2000) • Background • The 2000 Presidential election came down to the State of Florida • Early in the evening, the state was called for Gore based on exit polls • However, as results came in, the call was withdrawn • After 2 AM, the state was called for Bush • However, that call was based on erroneous data from Volusia County • Late returns from South Florida made the race too close to call • Gore withdraws his concession minutes before he would concede • Bush won by 1784 votes out of more than 6 million in the initial count • But that number dropped even more

12. Bush v. Gore- II • More background • Florida law required a machine recount if the margin was below a half a percent • The machine recount made it even closer • Issues in the recount • Palm Beach butterfly ballot • Hanging chad- what standard to use? • Brooks Brothers riot in Miami • The voter purge- disproportionate to African Americans • Katherine Harris wanted to cut it off and certify for Bush • Florida election law was backwards • One had to ask for recounts county by county- cherry-picking allegation • Different counties had different machines

13. Bush v. Gore- III • Other issues • The Florida Supreme Court was of Democratic appointees • But the Governor was named Jeb Bush • The Legislature was heavily Republican • The U.S. Supreme Court was largely Republican appointees • So, it was of advantage for Democrats to keep the case in Florida courts, but for Republicans to get the case into federal court • Dates to take into account • November 18- Florida law date to certify • December 12- Federal safe harbor (3 U.S.C. §5) • December 18- Date for electors to cast ballots

14. Bush v. Gore- IV • Initial cases • The Florida Supreme Court extends the certification deadline to November 26 • However, Palm Beach wasn’t finished and Miami-Dade quit counting • Then in Palm Beach Canvassing Board v. Harris, (Fla. 2000), the Florida Supreme Court rules Harris should not have certified • But in Bush v. Palm Beach Canvassing Board (2000), the U.S. Supreme Court send the case back to the Florida Supreme Court for clarification • Then in response in Gore v. Harris, (Fla. 2000), the Florida Supreme Court orders a full statewide recount of all under votes • But they failed to set one standard for their counting • To the surprise of many, the Supreme Court issues a 5-4 ruling granting a stay of the recount • There were a lot more cases in the state court level than I can go over

15. Bush v. Gore- V • Questions • Did the Florida Supreme Court violate Article II, Section 1, Clause 2 by making new election law? • Did the lack of a standard for the manual recount violate the Equal Protection and Due Process clauses? • Arguments • For Bush • Florida signed up for the safe harbor provision • Therefore the Florida Supreme Court changed state law rather than interpreted it • The State Legislature is the final arbiter of how electoral votes are distributed • The Florida House Speaker had the House vote to award the electoral votes to Bush • But in choosing the safe harbor provision, they said contests should end by December 12 • The lack of a clear standard in the recount violates equal protection

16. Bush v. Gore- VI • Arguments • For Gore • Safe harbor is only an option • The Florida Court merely interpreted state law • The decision is consistent with Equal Protection • All hand recounts are subject to supervision by the county canvassing board and review by the Florida judicial branch • The overarching goal is to have every vote counted

17. Bush v. Gore- VII • Per curiam opinion • We don’t know who primarily wrote it, but many have speculated it was O’Connor • The state legislature determines the counting of electoral votes in a state under the Elections Clause, and they never formally gave that power up • Equal protection- one cannot weigh one vote more than anotherby arbitrary or disparate treatment • The Florida Supreme Court failed to set out a standard for non-arbitrary treatment of votes, and intent of the voter doesn’t satisfy this • Uniform rules were necessary on a statewide basis • Failure to look at all ballots • Failure to look at over votes

18. Bush v. Gore- VIII • More on the Per Curiam opinion • The Florida Supreme Court needed to set out uniform standards for each of the counties to follow • However, since the Court said that Florida had opted into the safe harbor provision, they did not have time to do the proper recount, the case was over • The opinion was delivered at 10PM the night of the deadline • So the recount ends and the certification stands- Bush wins • The Court ruled this opinion was unique only to this case • The Equal Protection vote was 7-2 • The shutting down of the recount vote was 5-4

19. Bush v. Gore- IX • The Concurrence • Rehnquist, Scalia and Thomas • They thought Article II Elections Clause required the Florida Supreme Court to give deference to the manner the state legislature proscribed for the method of election of electors • They felt the Florida Supreme Court had littler role here • The Stevens dissent • Joined by Ginsburg and Breyer • The Florida Court had authority to decide these issues • The Court should have given deference to Florida Courts on Florida law • They were substituting their interpretations for those of Florida’s judiciary • The Equal Protection issue can be alleviated by the Florida process that includes a judge

20. Bush v. Gore- X • The Souter dissent • Joined by Breyer in whole and Ginsburg and Stevens in part • The Court should have never reviewed the Florida Supreme Court decisions • Defer to Florida Supreme Court on interpretation of Florida law • Should not have issued the stay and stopped the recount • It would have been done by now • Should have been left to political process • Safe harbor determinations are made by Congress, not the courts • The proper place for disputed election is the Congress • Florida really has until December 18 to count the votes, not December 12 • The Equal Protection argument ignores how there is a variety of types of voting machines within the state with different levels of effectiveness of ascertaining votes cast • There is already a disparity

21. Bush v. Gore- XI • The Breyer dissent • Joined by Stevens and Ginsburg in whole and Souter in part • The Court was wrong to grant cert, stay the recount and end the process • The Florida court could wrap everything up by December 18 • There is no record of evidence that it could not have • He was very critical of the Court taking up this case and deciding it the way they did • Check on the Court’s own exercise of power • Judicial self-restraint • “The most important thing we do is not doing”- quoting Stone from Butler • The case did not change public opinion so much on the Court however

22. Bush v. Gore- XII • The Ginsburg dissent • Joined by Stevens in whole, and Souter and Breyer in part • Deference to the Florida Supreme Court on Florida law • Calls out the majority for hypocrisy • The Florida courts have acted quickly and can again to meet the deadline • After this: • Gore concedes • Bush wins 271-267* • Bush is reelected in 2004

23. The next lecture • We will cover • Faithful execution of the laws • Veto power • Signing statements • Pages 199-212