Title: 05-01pp.139
1. In Raines v. Byrd (1997) the Court ruled that members of Congress have standing to sue over
2. Each state is given a number of Electoral College votes _______.
3. There was no limit on the number of terms a president could serve until _______.
4. Which of the following presidents was/were impeached by the U.S. House of Representatives?
5. In Re Neagle (1890; dispute involving a possible attempt on Justice Field’s life) generally
supported _______.
6. When the president is enforcing a federal law, he is exercising a (n) _______ power.
7. The Presentment Clause establishes that _______.
8. According to the Court, presidents have the power to remove _______.
9. Who is second in line to assume the presidency in the event of a president’s death, resignation,
or disability?
10. In Train v. City of New York the Court ruled that _______.
11. In Hamdi, the members of the Court were nearly unanimous that _______.
12. In Clinton v. City of New York (1998), what did the Court find constitutionally defective
about the Line Item Veto Act?
13. What procedures does the Twenty-fifth Amendment require when there is a vacancy in the
office of vice president?
14. In Morrison v. Olson (1988) the Supreme Court upheld the independent counsel provisions
of the Ethics in Government Act of 1978. In so doing, the Court held that the office of
independent counsel met the criteria of an “inferior officer.” What aspects of the independent
counsel did the Court identify as meeting the definition of an “inferior officer”? Why was the
classification of the independent counsel as an inferior officer important to the outcome of the
case?
15. In Nixon v. Fitzgerald (1982) the Court disallowed a suit by a private individual against the
president of the United States, but in Clinton v. Jones (1997) the justices allowed such a suit.
What was the primary difference between the two cases that led the Court to reach different
results?
16. How far does executive privilege extend, according to the Court’s decision in United States
v. Nixon (1974)?
17. United .States. v. Curtiss-Wright Export Corp. (1936) makes clear that presidents have
almost unfettered power over foreign affairs. Are there any limits to such power? If so, what are
18. What are the constitutional qualifications for presidential eligibility?
19. How did the Twelfth Amendment change the procedures for selecting the president through
20. How does the Succession Act of 1947 differ from the National Security Act of 1947 in terms
of presidential succession?
21. How did the Court’s decision in Train v. New York limit presidential power to execute laws?
22. On what grounds did the Court rule against the presidential power to take over an industry
(even during war time) in Youngstown Sheet & Tube Co. v. Sawyer?
23. What are the three levels of presidential power, according to Justice Jackson in Youngstown
Sheet & Tube?
24. Why did the plurality in Hamdan rule against the government?
25. What limits does the War Powers Act place on the president’s ability to engage in military
action?
26. The Framers of the U.S. Constitution would have great trouble recognizing today’s
presidency. The sentiment of the delegates to the Constitutional Convention was that the
Articles of Confederation were flawed because they did not provide for an executive, but few
would have supported the far-reaching powers wielded by modern presidents. After what they
had suffered under the British monarch, many delegates had serious reservations about awarding
too much authority to the executive branch. Those who supported the New Jersey Plan
envisioned a plural executive in which two or more individuals would share the chief executive
position as insurance against excessive power accruing to a single person. The Framers would be
amazed at the vast military resources over which the president serves as commander in chief, to
say nothing of the hundreds of departments, agencies, and bureaus that constitute the executive
branch.
Some scholars lay the blame (or credit, depending on your perspective) for this
“aggrandizement” of the American presidency directly on the Supreme Court. Do you agree?
Specifically, do you believe that the Court has been particularly generous to the president in
interpreting the scope of the office’s constitutional powers? In addressing this question, be sure
to (1) justify your response with references to existing U.S. Supreme Court precedent, and (2)
consider, incorporate, or at least acknowledge arguments that may not support your response.
27. Article II, Section 2, of the Constitution gives the president the power to appoint officials
with the advice and consent of the Senate. Explain how the Court has distinguished between
inferior and important officials. Does the Court’s opinion in Morrison v. Olson make sense in
light of earlier decisions that delineate between important and inferior officials? Why or why
not? Finally, does the president’s appointment power differ from the removal power? In short,
explain when a president may remove officials without the consent of Congress, and when
approval from Congress is required. Should a president be able to remove all executive officials
without congressional approval? Why or why not?
28. In May 2014, President Obama agreed to use U.S. troops to help find more than 270 girls
who had been kidnapped in Nigeria. Congress did not want to approve the use of our troops and
threatened to withhold financial support for this operation. What would be Obama’s
constitutional case for sending troops to Nigeria without the consent of Congress, and what
would be his opponents’ argument e against such power? To support each side, use what you
have read about the Court’s decisions concerning presidential power over foreign policy and
during times of crisis. After explicating each side’s arguments, explain which side you agree
with and why.
29. In late 2004, as the war on terrorism rages on, Americans are growing unhappy with the toll
it is taking on the country. U.S. soldiers die every day in combat, and the cost of fighting the war
has now reached the $100 billion mark. Congress, too, is deeply concerned about the war. While
it initially supported military efforts, it now believes that, in conducting the war, the
administration has violated the War Powers Act of 1973. This legislation acknowledges the right
of the president to undertake limited military action without first obtaining formal approval from
Congress. However, the statute requires the president to file a formal report with Congress within
forty-eight hours of initiating hostilities. Military action under this act is limited to sixty days
with a possible thirty-day extension. If the president wishes to pursue military activity beyond
these limits, prior congressional consent is required.
Since President George W. Bush has not obtained congressional approval for military action
since 2003, but he nonetheless continues to conduct military operations in Iraq and Afghanistan,
Democrats in Congress charge that the president and his administration are violating the law.
Accordingly, they begin impeachment proceedings against several cabinet secretaries and the
president himself. They believe these actions are warranted in light of the administration’s
unwillingness to follow the War Powers Act. They also believe that the president will not pay
heed to a public increasingly opposed to his military efforts. After all, he has just been reelected
for a second term and can’t stand for reelection in 2008, so public opinion is of little concern to
him.
But, recognizing that impeachment proceedings against Bush and the others could take some
time, congressional Democrats devise a stopgap measure. They decide that the Department of
Defense will now be run by Congress rather than the executive branch.
They justify this plan on a number of grounds, not the least of which is that, because Congress
created the department, it can now take it back. They add that because the president has, in
conducting the war on against terrorism, violated the separation of powers doctrine, they have no
choice but to run the Department of Defense as a legislative operation. Needless to say, the Bush
administration is furious. The president immediately brings suit against the Democratic leaders
in Congress, asking a federal court to strike down the War Powers Act of 1973 and to stop
Congress from taking over the Defense Department.
Suppose you were the judge in this case. Would you rule in favor of the Bush administration (in
part or in full) or Congress (in part or in full)? Why? Be sure to (1) justify your response with
reference to relevant Supreme Court precedent, and (2) consider, incorporate, or at least
acknowledge arguments that may not support your response.
30. President Bush asked for, and received, congressional approval to to send troops into
Afghanistan in response to the September 11, 2001, terrorist attacks on New York City and
Washington, D.C.America.
The troops conducted their military operation, but some stayed behind on a peacekeeping
mission. More specifically, the troops who stayed were there to assist the U.N. forces that would
eventually take over the operation. Their mission, as Bush told the American public, “is now for
peace-keeping purposes only.” Let us assume that the peacekeeping mission was a disaster. By
the end of 2002, fighting again had erupted in the region. The evening news was full of images
of dead and injured American soldiers. Public opinion shifted strongly against U.S. involvement
in the region.
Bush, however, felt that the interests of the United States were at stake in that region of the
world, and he decided to send in more troops specifically equipped for heavy combat. They
began launching attacks into the mountains on the Afghanistan-Pakistan border—both from the
air and on the ground. Congress was not consulted about Bush’s decision to escalate U.S.
involvement in the region, leading many members of Congress to come out vocally against the
President.
By August 2003, members of Congress and the public began to question Bush’s decision. All in
all, the American operation in Afghanistan was not going well: thousands of soldiers had been
killed, and; many more had been seriously wounded. Finally, in late August Bush pulled out the
U.S. troops; the entire venture had been a major fiasco. Not only had many Americans died, but
also problems in the region remained unresolved.
Congress did not plan to let Bush off the hook easily. In September of 2003, a special house
committee was created to determine whether he had violated the War Powers Act. Passed in
1973 by a Congress fed up with its impotence during the Vietnam War, the War Powers Act
contains the following key provisions: 1. It sets a sixty-day limit on any Presidential commitment
of U.S troops abroad without specific congressional authorization. The commitment may be
extended for another thirty days if necessary for the safe withdrawal of troops. 2. It allows for the
termination of Unauthorized commitments prior to the sixty-day deadline through congressional
adoption of a concurrent resolution, a measure that does not require presidential signature or
approval. 3. It requires the president to consult with Congress in every possible instance before
introducing United. States armed forces into hostilities or into situations where imminent
involvement in hostilities is clearly indicated.
During the course of the House committee’s hearings, it became clear that many more
individuals within the executive branch (besides Bush) were involved (e.g., the Secretary of
Defense, the Director of the CIA). At this point, the committee asked the president to turn over
certain documents, particularly those describing the administration’s strategic decision-making
processes and defense plans in the Afghanistan conflict. President Bush refused to do so, and he
sent his Attorney General, (John Ashcroft,) to Congress to explain his reasons.
Ashcroft offered two explanations. First, in the administration’s eyes, the entire War Powers Act
violated the separation of powers doctrine and interfered to an impermissible (and, thus,
unconstitutional) extent with the President’s responsibilities as Commander -in -Chief and as the
“sole organ of foreign affairs.” Accordingly, the administration argued that it did not need to
comply with a congressional investigation into on whether or not Bush had violated the Act.
Second, the administration asserted that, even if the Act was constitutional, the President could,
under a claim of executive privilege, refuse to turn over sensitive documents.
Members of Congress immediately took on Bush and Ashcroft in a U.S. District Court. They
argued that the War Powers Act was perfectly compatible with existing U.S. Supreme Court
doctrine. They also asserted that the President was using “executive privilege” as an excuse to
avoid cooperating on with the committee and that he could not constitutionally do so.
Suppose you were the district court judge in this case. Using relevant Supreme Court doctrine,
how would you rule on both aspects of this case, the constitutionality of the War Powers Act and
the claim of executive privilege? Explain and justify your responses. Now consider this question:
Would your responses be different if the United States still had troops in Bosnia at the time this
suit was pending? Why or why not? Again, be sure to justify your responses with reference to
Supreme Court cases.