con law: separation of power reading notes

• the constitution allocates government authority in two dimensions: between the federal and state governments (federalism) and among the three branches (separation of power)
• art. I endows congress with the national legislative power. 
• art II gives exec power to the pres. the pres' power of unilateral action is more limited at home than it is when s/he's acting internationally.
  
• art. III gives judicial power to the US, and other courts est by congress
• foreign affairs are not divested of the state to the federal gov't and so they exist exclusively with the federal government. 

youngstown (the steel seizure case).
issue: whether truman was acting within his constitutional power when he issued an order directing sec of commerce to take possession of and operate the nation's steel that was not a direction to implement a congressional policy but instead an order to implement an executive policy
rationale: president's art. II power confers the right/responsibility to "take Care that the Laws be faithfully executed (executed, not created)" and "shall be Commander in Chief of the Army and Navy". but the pres' power to issue an order to seizure must stem either from an act of Congress or from the const. itself.  for an order of the president to be effective, it must be an order that is within the scope of the exec power of art. II. even when the pres takes possession of private business enterprise, it has to be within his scope of power and not divest congress of its scope of power.
holding: the president cannot seize by the method employed
(additionally, black attacked that congress failed to act by rejecting the president's proposed seizure)

problem. 

in an effort to curb federal spending, president nixon claimed he had authority to refuse to spend funds appropriated by congress. the US never decided the question of whether the pres has power to impound appropriated funds. instaed, the controversy effectivly ended when conress enacted a statute prohibiting impoundment. what's the validity of presidential impoundment of appropriated funds under the various approaches taken by the justices in youngstown?

appointment power: the pres doesn't personally wield all exec power obviously. subject to art II, s. 2, the pres has power to appoint lots of "other Officers of the u.s," subject to senate confirmation. but congress can vest the power to do this. and not all employees of the federal gov't are officers. 

removal power: impeachment is not the sole method for removal. but this does raise questions

- does the pres have the unilateral power to remove his own subordinates? 

- may congress restrict or eliminate the pres power to remove besides impeachment?

- creation of the FTC is an example of a congressional act that divests some arbitratiness of the pres removal power by limiting removal from terms only for "inefficiency, neglect of duty, or malfeasance in office." 
- congress itself cannot remove an officer except by impeachment





morrison v. olson

us v. curtiss-wright export corp. 
facts: appellees wanted to sell in the us 15 machine guns, to bolivia, which was engaged in a conflict with paraguay, in conflict with the the joint resolution act: (paraphrased) "if the pres finds that prohibition of the sale of weapons will help bring peace, then he make proclaim it unlawful to sell any arms unless ordered by the pres or congress". district court dismissed the indictment against appellees because JRA was invalid delegation of legislative power to the exec.
issue: whether the JRA gives legislative power over to the pres, and thereby is unconstitutional
rationale: if this matter were domestic then yes - JRA would be invalid. but foreign affairs is a power not possessed by the states. the constitution carves out powers possessed by the states as they desired to divest to the federal gov't... but foreign affairs powers are not among these. the pres is the sole organ of the nation in its external affairs, and its sole rep with foreign nations.
holding: foreign affairs is a plenary power of the pres and, though not unlimited or unrestricted, does not require an act of congress to be exercised.

compare curtiss-wright and youngstown: curtiss-wright is not a question of the pres power to act without congressional authority, but instead a question of his right to act under and in accord with an act of congress.

dames & moore v. regan
issue: can congress give the pres power to seize all property of the gov't of iran subject to US jurisdiction, both on and off US soil? can the pres ratify the order to