Chapter 7. SEPARATION OF POWERS

1. The President's Power to Determine National Policy

• what executive action is being challenged, and what was its purpose?
• what executive powers are invoked to support the action?
• what had Congress done relating to the claimed power?
• were legislative and executive branches in active conflict over the issue?
• if so, what rationale would sustain the president's action?
• is the congressional action within its power?
• if so, is the president bound by it?
• if not, on what rationale is the President's action invalid?
• in what sense is the scope of the President's power subject to the control of Congress?
• is there a uniquely executive power to act in emergencies, not regulable by Congress and not reviewable by the courts? vestiture clauses in Arts. I, II, III?
• If so, was this an appropriate occasion for exercising it?

• what executive action is being challenged, and what was its purpose?
• what executive powers are invoked in support of the action?
• what was the position of Congress with respect to the action in question?
• suppose Congress, while negotiations were going on with the Iranians, had passed a law prohibiting the President from settling the claims for any amount less than 95% of their value, or from removing any claim from the jurisdiction of a domestic U.S. court -- and had overridden the President's veto. Would the decision have been different?
• what was the position of Congress with respect to the general power invoked?
• Is the case distinguishable from Youngstown?

• what presidential act is being challenged?
• blockade of southern ports
• seizure of ships violating it, as prizes of war (international law!)
• what is the source of authority claimed for the President?
• inherent power?
• congressional ratification?
• can there be such a thing as an "undeclared war"?

• what presidential act is being challenged? did the Supreme Court resolve the challenge?
• are the questions posed by Justice Stewart in dissent justiciable?

 

• What exactly does the LIVA authorize the President to do?
• How do these plaintiffs have standing to challenge the President's action?
• How does this authority differ, if at all, from
• the constitutional veto?
• the President's simple refusal to spend authorized funds ("impoundment")?
• a provision in a statute authorizing expenditures, which expressly authorizes the President to withhold the expenditure on making certain specified findings of fact?
• Is there any difference in the appropriate analysis for "canceling" a "tax benefit", compared with "canceling" an expenditure?