VOLUME I: SOURCES OF POWER AND RESTRAINT
CHAPTER 3:
CONSTITUTIONAL UNDERPINNINGS OF THE PRESIDENCY
Chapter Overview
Notes on Excerpted Cases
Questions for Thought and Discussion
Multiple Choice Questions
Essay Questions
Hypothetical Problem (for Classroom Discussion or Essay Examination)
Introduction of Topic in Lecture
Questions for Website
CHAPTER OVERVIEW:
Structural Aspects of the Presidency
Theories of Presidential Power
The Veto Power
Appointment and Removal Powers
The Power to Grant Pardons
Executive Privilege
Presidential Immunity
Foreign Policy and International Relations
War Powers
NOTES ON EXCERPTED CASES:
Youngstown Sheet and Tube Co. v. Sawyer (1952). In December 1951 President Truman
was informed that negotiations between labor and management in the steel industry had
broken down. Concerned about the possible consequences of a stoppage in steel
production, both for the domestic economy and for the Korean War effort, Truman acted
to delay a strike by referring the issue to the Wage Stabilization Board for further
negotiation. By April 1952 it became clear that negotiations were fruitless and the
workers announced their plans to strike. To prevent this, Truman ordered Secretary of
Commerce Charles Sawyer to seize the steel mills and maintain full production. Not
surprisingly, this action was challenged in the courts and very soon the issue was before
the Supreme Court. Much to President Truman’s chagrin, the Supreme Court (splitting 6–
3) refused to allow the government to seize and operate the steel plants. Writing for the
Wiener v. United States (1958). In this case President Eisenhower sought to remove a
commissioner from the War Claims Commission in order to replace him with his own
appointee. Wiener was one of three commissioners appointed by President Truman
pursuant to the War Claims Act of 1948 to adjudicate claims for compensating internees,
prisoners of war, and religious organizations that suffered personal injury or property
damage at the hands of the enemy in World War II. After refusing to tender his
resignation, Wiener was removed from his position by President Eisenhower in
December 1953. In ordering Wiener’s removal, the President stated, “I regard it as in the
national interest to complete the administration of the War Claims Act of 1948, as
amended, with personnel of my own selection.” Wiener then brought suit in the Court of
Claims, seeking to recover his salary as a Commissioner from the day he was removed by
Eisenhower, to June 30, 1954, the day the Commission went out of existence. On appeal,
United States v. Nixon (1974). This case arose when President Nixon refused to turn over
a number of tape recordings subpoenaed by the Watergate special prosecutor. In refusing
to comply with the subpoena, Nixon relied on executive privilege, the right of a president
to withhold certain information from Congress and the Courts. While recognizing the
legitimacy of executive privilege as a means of protecting nation security, the Supreme
Court held that the privilege was not absolute and that the President had no right to
frustrate a legitimate criminal investigation. The Court ordered Nixon to surrender the
tapes to the Special Prosecutor.
Clinton v. Jones (1997). In a unanimous decision the Supreme Court rejected President
Clinton’s request that proceedings in a sexual harassment suit brought against him by a
former Arkansas state employee, Paula Corbin Jones, be delayed until he leaves office. This
decision was the first to consider whether an incumbent President could be sued for alleged
actions occurring outside the scope of his official duties. Justice Stevens delivered the
opinion of the Court and Justice Breyer delivered a separate concurrence.
United States v. Curtiss-Wright (1936). In May 1934, Congress adopted a joint
resolution authorizing the president to forbid American companies from selling munitions
(under such limitations and exceptions as the president might determine) to the warring
nations of Paraguay and Bolivia. Additionally, Congress provided for criminal penalties
for those violating presidential prohibitions. Shortly after this resolution was adopted,
President Roosevelt issued an executive order imposing an embargo on arms sales to the
belligerent countries. In 1936 the Curtiss Wright Export Corporation was indicted for
Dames and Moore v. Regan (1981). Under an Executive Agreement with Iran, President
Jimmy Carter secured the release of fifty-two American hostages in early 1981. The
agreement negated all attachments against Iranian assets in the United States and transferred
claims against Iran from American to international tribunals. Dames and Moore brought a
suit in federal court challenging the constitutionality the enforcement of the executive orders
The Prize Cases (1863). These cases involved the disposition of Confederate vessels
captured by the Union navy during the blockade of Southern ports ordered by Lincoln in
the absence of a congressional declaration of war. Under existing laws of war, the
captured vessels would become the property of the Union navy only if the conflict were a
declared war. Given the extremely sensitive politics of the day, the Court could do
Korematsu v. United States (1944). Early in the Second World War, President Roosevelt
issued orders authorizing the establishment of “military areas” from which ostensibly
dangerous persons could be expelled or excluded. Congressional legislation supported
Roosevelt’s orders by establishing criminal penalties for violators. Under these executive
and congressional mandates, General J.L. DeWitt, who headed the Western Defense
Hamdan v. Rumsfeld (2006). A Yemeni national detained at Guantanamo Bay brought
suit to challenge the legality and constitutionality of the military tribunal before which he
was to be tried. Hamdan’s brief to the Supreme Court argued that President Bush had
“claimed the unilateral authority to try suspected terrorists wholly outside the traditional
civilian and military judicial systems, for crimes defined by the President alone, under
procedures lacking basic protections, before judges who are his chosen subordinates.” In
Hamdan’s view, the president’s actions “reach far beyond any war power ever conferred
upon the Executive, even during declared wars.” Dividing 5-to-3 (Chief Justice Roberts
not participating because he had previously voted in the case at the court of appeals level)
United States v. United States District Court (1972). Three defendants were charged
with conspiracy to destroy government property. One of them, Plamondon, was also
charged with the bombing of a CIA office in Ann Arbor, Michigan. Defendants filed a
pretrial motion to compel disclosure of information the government had obtained through
electronic surveillance that had not been judicially approved. The government asserted
that the surveillance was lawful as a reasonable exercise of the president’s power to
QUESTIONS FOR THOUGHT AND DISCUSSION:
1. If they were resurrected, what would the Framers of the Constitution think of the
contemporary presidency?
2. Would the courts permit the president to issue an executive order suspending the writ
of habeas corpus with respect to non-citizens who are suspected of acts of terrorism?
3. Does the Constitution permit the president to order the American military to
undertake actions domestically to root out terrorist cells that may be located within
this country?
4. How would the Supreme Court and Congress have responded if President Nixon had
refused to comply with the Court’s decision in the Watergate Tapes Case?
5. Can Congress or the Supreme Court hold a president in contempt?
6. Would President Bush (the elder) have been justified in proceeding with the use of
force against Iraq if Congress had refused to authorize military action?
7. Would the current Supreme Court be likely to uphold or invalidate a “relocation” of a
particular ethnic group in circumstances similar to those presented by Korematsu v.
U.S.?
8. Should the federal courts play a more active role in determining the constitutional
allocation of war powers between Congress and the presidency?
9. Are the president’s powers as Commander in Chief adequate for the successful
prosecution of the war on terrorism?
10. Under what circumstances should a citizen be permitted to sue a sitting president?
11. Discuss the varying views of what constitutes “high crimes and misdemeanors” for
12. Should the president be permitted to exercise a line-item veto, the Supreme Court’s
decision in Clinton v. City of New York (1998) notwithstanding?
MULTIPLE CHOICE QUESTIONS:
issue an executive order “restricting the jurisdiction of the Supreme Court on a
temporary basis.”
a. TRUE
b. FALSE
times is what led noted constitutional scholar _________ to remark that “the
history of the Presidency has been a history of aggrandizement.”
a. Alexander M. Bickel
b. Raoul Berger
c. Walter Murphy
d. Edward S. Corwin
President _________________ died after only a month in office.
a. William Henry Harrison
b. John Tyler
c. James Knox Polk
d. Zachary Taylor
Amendment, ratified in 1967.
a. Twenty-sixth
b. Twenty-fifth
c. Twenty-fourth
d. Twenty-third
Representatives in 1868 but narrowly escaped conviction by the Senate.
a. Abraham Lincoln
b. James Garfield
c. Ulysses S. Grant
d. Andrew Johnson
granted to the president. These include the authority to ___________________.
a. nominate federal judges
b. regulate interstate commerce
c. declare war
d. all of the above
be fairly and reasonably traced to some specific grant of power or justly implied
and included within such express grant as proper and necessary to its exercise.”
a. Abraham Lincoln
b. Alexander Hamilton
c. William Howard Taft
d. Theodore Roosevelt
signed the bill, it is said to have to have been subjected to a (an) _____ veto.
a. item
b. silent
c. pocket
d. legislative
powers” in ____________.
a. Myers v. United States (1926)
b. Ex Parte Milligan (1866)
c. Barnes v. Klein (1985)
d. Humphrey’s Executor v. U.S. (1935)
Nixon fired Attorney General Elliot Richardson and Assistant Attorney General
William Ruckelshaus, both of whom refused to follow the President’s order to
dismiss Watergate special prosecutor __________________.
a. Robert H. Bork
b. William H. Rehnquist
c. Fred Dalton Thompson
d. Archibald Cox
Jefferson withheld $50,000 that Congress had allocated to build gunboats to
defend the Mississippi River.
a. executive privilege
b. line-item veto
c. impoundment
d. none of the above
exercised in 1801 by President ________.
a. Thomas Jefferson
b. James Madison
c . George Washington
d. John Adams
decision to revoke the __________ of a former CIA agent whose foreign activities
were deemed a threat to national security.
a. citizenship
b. security clearance
c. passport
d. transactional immunity
override the limitations of the Constitution, Senator ____________ in the early
1950’s proposed a constitutional amendment that would have nullified any treaty
provision conflicting with the Constitution.
a. James Eastland
b. Joseph McCarthy
c. Strom Thurmond
d .John Bricker
States and Canada designed to protect migratory birds.
a. Missouri v. Holland
b. Montana v. Canada
c. Oklahoma v. United States
d. Quebec v. United States
___________________.
a. fully restores any civil rights that were forfeited upon conviction of a crime
b. may not be issued in cases of treason against the United States
c. may apply to state as well as federal crimes
d. may be issued only after the individual has begun to serve his sentence
________ President Truman’s order having the federal government seize and
operate the Nation’s steel industry.
a. upheld
b. struck down
c. refused to review
constitutionality of the American war effort in Vietnam.
a. upheld
b. struck down
c. refused to review
legislative veto provision of the War Powers Act is presumptively __________.
a. valid
b. invalid
c. actionable
d. ripe for review
necessarily predominates.”
a. Alexander Hamilton
b. John Jay
c. George Washington
d. none of the above
order authorizing the exclusion of persons of Japanese ancestry from designated
areas along the west coast of the United States ________________________.
a. was an unconstitutional deprivation of due process and equal protection
b. was inherently suspect but ultimately constitutional
c. had a rational basis
d. presented a nonjusticiable political question
ruled in effect that ___________.
a. the President’s claim of executive privilege as a justification for withholding
subpoenaed information from the grand jury and special prosecutor violated the
Due Process Clause of the Fifth Amendment
b. the President’s claim of executive privilege can never be used as a basis for
refusing to provide information requested by a grand jury
c. the President, like other Watergate coconspirators, should have been indicted
before the tapes were subpoenaed
d. any presidential assertion of executive privilege must prevail over ordinary
considerations of the criminal process.
President’s power to ________.
a. issue pardons and amnesties
b. appoint heads of executive departments
c. remove officials who perform quasi-legislative or quasi-judicial duties
d. negotiate treaties with foreign countries
a. may not be overturned by a duly enacted federal statute
b. may be negated by any of the fifty states acting in its sovereign capacity
c. cannot interfere with the implementation of previously enacted state legislation
d. may be overturned by a duly enacted federal statute
a. originally granted by an Act of Congress
b. always limited to persons convicted of non-capital felonies
c. included in the original Bill of Rights
d. granted by a provision in Article II of the Constitution
centered around __________________.
a. the structure of the presidency
b. the number of term limits for the president
c. both a and b
d. neither a and b
being elected to more than two terms.
a. Nineteenth
b. Twentieth
c. Twenty-First
d. Twenty-Second
president and vice president on separate ballots.
a. Eleventh
b. Twelfth
c. Thirteenth
d. Fourteenth
powers in ______________.
a. Myers v. United States (1926)
b. United States v. Nixon (1974)
c. The Prize Cases (1863)
d. none of the above
_________ choose(s) the President from the top three candidates.
a. Senate
b. House of Representatives
c. Supreme Court
d. People via a run off election
President John F. Kennedy, establishes, among other things, a procedure under
which the vice president may assume the role of acting president during periods of
presidential disability.
a. Twenty-Third
b. Twenty-Fourth
c. Twenty-Fifth
d. none of the above
Alexander Hamilton’s perspective, was best encapsulated by President _________.
a. Abraham Lincoln
b. Alexander Hamilton
c. William Howard Taft
d. Theodore Roosevelt
controversy, the Supreme Court refused to issue an injunction against newspapers
that had come into possession of the Pentagon papers, a set of classified documents
detailing the history of American strategy in Vietnam.
a. New York Times Company v. United States
b. In re Neagle
c. United States v. Nixon
d. none of the above
which the Concurrence of the Senate and the House of Representatives may be
necessary” must be presented to the president for approval.
a. Article I, Section 7
b. Article I, Section 6
c. the Presentment Clause
d. Both a and c
ground that it violated the presentment requirement of Article I.
a. Hamdan v. Rumsfeld (2006)
b. Immigration and Naturalization Service v. Chadha (1983)
c. Korematsu v. United States (1944)
d. United States v. United States District Court (1972)
unconstitutional because the law permitted the president to in effect amend duly
enacted legislation.
a. Clinton v. City of New York (1998)
b. Clinton v. Jones (1997)
c. United States v. Nixon (1974)
d. none of the above
Government Act of 1978 under which a “Special Division” of the U.S. Court of
Appeals for the District of Columbia is empowered to appoint special prosecutors
to investigate allegations of misconduct involving high government officials.