what might happen if the president alone did not have the power to negotiate with foreign government
The delegates to the Constitutional Convention of 1787 gave surprisingly little attending to the executive branch of authorities. In contrast to the protracted debates over the powers of Congress, the powers of the president were defined fairly quickly and without much discussion. This might in part be due to the reluctance of delegates to offend George Washington, the presiding officeholder of the Convention, and the man all delegates assumed would exist the nation's first president. Every bit a result, one can study Madison's Notes of Debates without ever reaching a clear understanding of the scope of the dominance the framers intended to requite the executive. Justice Robert Jackson, commenting on the unclear Convention record, wrote that it was "most as enigmatic as the dreams Joseph was called upon to interpret for the Pharaoh."
Despite the lack of attention given to the executive, historian Jack Rakove chosen the creation of the presidency the framers' "nearly creative human activity." In Article II of the new Constitution, the framers offered the world something entirely new: a chief executive whose power came from the people rather than heredity or strength. The Constitution, however, provides little hint that the president would get every bit powerful as he has in mod times. The framers obviously assumed that the legislative co-operative would be much more influential. Madison wrote that information technology would "rarely if e'er happen that the excecutive constituted as ours is proposed to be would have compactness enough to resist the legislature." Amidst the delegates, only Alexander Hamilton strongly advocated an executive with the power to match the monarchs of Europe.
Over the nation's long history, with but short interruptions, ability has flowed increasingly to the Executive Branch. The reasons for this are numerous, simply include the successful exercise of power by ambitious presidents from Lincoln to the two Roosevelts, the growth of the administrative state in the 20th century, and the realization that Congress is ill-suited compared to the President to brand timely responses to national security threats.
Cases
New York Times Co. v. United States (1971)
Dames & Moore v Regan (1981) Medelln v Texas (2008)
Zivotofsky 5 Kerry (2015)
Our readings include 4 cases dealing with the breadth of executive power. Youngstown Sheet & Tube Co. v Sawyer (1952) arose when President Harry Truman, reponding to labor unrest at the nation's steel mills during the Korean War, seized command of the mills. Although a half dozen-fellow member majority of the Court ended that Truman'southward action exceeded his say-so under the Constitution, seven justices indicated that the power of the President is non limited to those powers expressly granted in Commodity II. Had the Congress not impliedly or expressly disapproved of Truman's seizure of the mills, the action would accept been upheld. Justice Jackson, in a concurring opinion, outlined a tripartite test for determining whether a president is constitutionally exercising his impiled powers. Jackson's test has been used by the Courtroom in subequent cases involving the exercise of executive power. [Note for UMKC police students: Harry Truman took "Ramble Constabulary" at our law school--he got a "B" in the class.]
In 1971, the Nixon Administration, even though lacking whatsoever statutory authority to do so, went to courtroom to finish publication of "the Pentagon Papers," a serial of accounts based on a stolen, classified document entitled, "The History of U. Southward. Controlling on Viet Nam Policy." The Administration argued (amidst other things) that publication would threaten national security because other nations would exist reluctant to deal with the U. S. if their dealings couldn't be kept secret. Acting with unusual haste, the Court in New York Times 5 United States ended that a prior restraint on publication of excerpts from the Pentagon Papers violated the Kickoff Amendment. In a central opinion, two concurring justices indicated that they might have upheld the injunction if the Executive Co-operative's activeness had been supported by a narrowly drawn congressional dominance. Dames and More than five Regan (1981) considered the constitutionality of executive orders issued by President Jimmy Carter directing claims past Americans against Iran to a specially-created tribunal. The Court, using a businesslike rather than literalist approach, found the executive orders to be a constitutional exercise of the President's Article Ii powers. The Court noted that like restrictions on claims confronting foreign governments had been made at various times by prior presidents and the Congress had never in those incidents, or the present ane, indicated its objection to the practice.
In Medelln v Texas (2008), the Court considered whether President Bush had the power to order Texas courts to reopen a criminal instance subsequently the International Court of Justice issued an club to that outcome, finding that Texas officials had (inconsistent with the Vienna Convention) failed to notify Medelln, a Mexican national, that he had the right to contact the Mexican consulate afterwards his arrest. The Court held that the president lacked the ramble authorisation to turn a non-self-executing treaty into a treaty that finer bound state officials.
Ari Zivotofsky, with his son Menachem, outside the Supreme Courtroom. (AP photo)
Zivotofsky v Kerry (2015) considered the constitutionality of a federal statute that required the State department to record on passports the birthplace of American citizens born in Jerusalem every bit "Israel." The Country Department, however, refused the request of the parents of Manachem Zivotofsky, born in Jerusalem, to record their kid'south birthplace as "Isreal" and instead identified his birthplace only as "Jerusalem." (The State Section takes this position to avoid offending America's Arab allies.) Writing for the Court, Justice Kennedy found the statute to be a violation of Commodity II. Kennedy noted that the Article Two gives the President the power to receive foreign ambassadors and recognize foreign states, besides equally the power to make treaties and appoint ambassadors. The Courtroom concluded that the 2003 Foreign Relations Authorization Act contradicts or essentially intrudes on the Executive's ability to recognize states and, therefore, was unconstitutional. Chief Justice Roberts, joined past Justice Alito, argued in dissent that the Executive power claimed here was not "conclusively and preclusively" granted to the Executive Co-operative and therefore was subject to regulation by Congress. Justice Scalia also dissented.
The signing of the Louisiana Purchase treaty
Thomas Jefferson read the powers of the Constitution narrowly. As Secretarial assistant of Country under President Washington, Jefferson argued, unsuccessfully, that Constitution prohibited the establishment of a national bank or federal assumption of state debts. A decade later as President,
Jefferson worried whether the Constitution provided him the power to annex new territory--specifically, the Territory of Louisiana, which France offered to the United states for buy. Writing to a friend at the fourth dimension, Jefferson expressed doubts well-nigh whether the Constitution enabled him to acquire the all-encompassing new lands streching across the vast middle of the continent. In the end, all the same, the Louisiana Purchase was too dandy an opportunity to turn down. Jefferson'south view of federal ability became somewhat more expansive: he concluded that the Constitution implicitly allowed the The states to acquire territory.
Article. II.
The executive Ability shall be vested in a President of the U.s. of America. He shall hold his Office during the Term of 4 Years....
Section. two.
The President shall be Commander in Chief of the Army and Navy of the United states of america, and of the Militia of the several States, when called into the bodily Service of the United States; he may require the Opinion, in writing, of the main Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall accept Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall take Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present hold; and he shall nominate, and by and with the Advice and Consent of the Senate, shall engage Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are non herein otherwise provided for, and which shall exist established by Law: only the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Police, or in the Heads of Departments.
The President shall accept Power to fill up all Vacancies that may happen during the Recess of the Senate, past granting Commissions which shall expire at the End of their side by side Session.
Section. 3.
He shall from time to time give to the Congress Data of the State of the Wedlock, and recommend to their Consideration such Measures as he shall approximate necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Fourth dimension of Adjournment, he may curb them to such Time as he shall recollect proper; he shall receive Ambassadors and other public Ministers; he shall take Intendance that the Laws exist faithfully executed, and shall Committee all the Officers of the United States.
Questions
2. In your opinion, does the Executive Co-operative today have too much power relative to the other 2 branches of government? Why or why non?
iii. Do you think any specific recent exercises of presidential power have been problematic?
iv. Justice Jackson's concurring opinion in Youngstown is oft cited. What do y'all call back of his assay, which suggests that an exercise of presidential power is highly dubious when it conflicts with congressional action or policy, least dubious when it is consistent with congressional action or policy, and within a questionable "twilight zone" when congress has not spoken at all on the upshot?
Was the Emancipation Proclamation Ramble?
Congress, in July 1862, passed and Lincoln signed the "Second Confiscation Act." It liberated slaves held by "rebels," and was a footstep taken to undermine the Confederacy's war endeavour. The Emancipation Proclamation went further.
Lincoln beginning discussed the proclamation with his cabinet in July 1862.... The terminal announcement was issued in January 1863. The Proclamation declared equally permanently freed all slaves in all areas of the Confederacy that had not already returned to federal control past Jan 1863. Although implicitly granted authority by Congress, Lincoln used his powers as Commander-in-Chief of the Ground forces and Navy, "every bit a necessary war mensurate" every bit the basis of the proclamation.
The Proclamation freed the slaves in the areas of the Due south that were still in rebellion. Practically, it initially freed only some slaves already behind Union lines. However, it effects spread as the Marriage armies advanced into the Confederacy.
The Emancipation Declaration likewise allowed for the enrollment of freed slaves into the United states of america military. During the war nearly 200,000 blacks, almost of them ex-slaves, joined the Union Army. Their contributions gave the Due north additional manpower that was pregnant in winning the state of war. [Wikipedia]
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Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/prespowers.html
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