The Supreme Court and the presidency : struggles for supremacy / Julie Novkov.
2013
KF4565 .N68 2013 (Map It)
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Details
Author
Title
The Supreme Court and the presidency : struggles for supremacy / Julie Novkov.
Published
Thousand Oaks, Calif. : CQ Press, an imprint of SAGE Publications, [2013]
Copyright
©2013
Call Number
KF4565 .N68 2013
ISBN
9780872895256 (cloth)
0872895254 (cloth)
0872895254 (cloth)
Description
xxvi, 441 pages : illustrations ; 26 cm.
System Control No.
(OCoLC)811729474
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
Foreword
xvii
Preface
xix
1.
Introduction
1
A Brief History
2
The Basic Framework for Collaboration and Conflict
9
Documents
1.1.
Justice Sutherland Describes the Relationship between the Branches, December 21, 1936
10
1.2.
Alexander Hamilton Defends the Judiciary, June 14, 1788
12
1.3.
The Federal Farmer Expresses Fear of Consolidation, October 8, 1787
14
1.4.
The Federal Farmer Criticizes the Plan for the Judiciary, October 9, 1787
15
1.5.
The Federal Farmer Fears that the Judiciary Will Neglect Rights, October 10, 1787
16
1.6.
The Supreme Court Asserts Judicial Supremacy, September 12, 1958
18
2.
Separation of Powers and Judicial Respect for Coordinate Branches
21
Debates over Separation of Powers at the Founding and in the Antebellum Years
22
Twentieth-Century Refinements in Separation of Powers
24
Youngstown Sheet and Tube and the Introduction of the Tripartite Framework
25
The Theory of the Unitary Executive and Contemporary Concerns
27
Conclusion
28
2.1.
James Madison Defends the Constitutional Separation of Powers, February 1, 1788
28
2.2.
James Madison Warns Against Reliance on Parchment Barriers, February 1, 1788
30
2.3.
James Madison Defends the Structure of Checks and Balances, February 8, 1788
31
2.4.
Brutus Objects to the Supreme Court, March 20, 1788
31
2.5.
The Federal Farmer Objects to the President's Capacity to be Re-elected, January 17, 1788
33
2.6.
Mr. Lincoln Criticizes the Dred Scott Decision, August 21, 1858
34
2.7.
Abraham Lincoln's First Inaugural Address, March 4, 1861
36
2.8.
The Court Explores Separation of Powers and Asserts Its Own Authority, February 23, 1915
38
2.9.
Justice Brandeis Lays Out Limits on the Court's Power, February 17, 1936
41
2.10.
Harry Truman Defends the Seizure of the Steel Mills, April 8, 1952
43
2.11.
Justice Jackson Articulates a Framework for Determining the Scope of Executive Authority, June 2, 1952
44
2.12.
John Yoo Justifies Broad Executive Authority to Conduct War Against the 9/11 Perpetrators, September 25, 2011
46
2.13.
Barack Obama Notifies Congress About Airstrikes in Libya, March 21, 2011
49
3.
Prerogative Governance and Checks and Balances
51
American Prerogative Government: A Taxonomy
52
An Example of Overshoot and Collapse: The Iran-Contra Scandal
54
Conclusion
57
3.1.
The Baron de Montesquieu Outlines Political Liberty, 1752
57
3.2.
John Locke Outlines Prerogative Governance, 1689
60
3.3.
Richard Pious Explains Prerogative in the American Context, 1979
62
3.4.
President Reagan Authorizes the Provision of Arms to Iranian Moderates, January 17, 1986
65
3.5.
Ronald Reagan Addresses the Nation on the Iran Arms and Contra Aid Controversy, November 13, 1986
65
3.6.
The Tower Commission Criticizes President Reagan and His Staff, February 26, 1987
67
3.7.
Ronald Reagan Again Attempts to Justify His and His Associates' Actions, August 12, 1987
69
3.8.
An Independent Counsel Criticizes the President and Congress, August 4, 1993
70
4.
The Power of Appointment
75
The Appointment Process: Selecting Nominees
76
Presidential Selection of Nominees
78
Recess Appointments: A Problem of Advice and Consent
82
When Nominations Fail: Senatorial Checks on the Appointment Power
82
A Case in Point: The Failed Nomination of Robert Bork
85
Conclusion
86
4.1.
Franklin Delano Roosevelt Attacks the Supreme Court, September 17, 1937
86
4.2.
Nominee Hugo Black Publicly Defends Himself, October 1, 1937
88
4.3.
Lyndon Johnson Nominates Thurgood Marshall to Serve as Solicitor General, August 24, 1965
90
4.4.
Lyndon Johnson Nominates Thurgood Marshall for a Supreme Court Seat, June 13, 1967
92
4.5.
Richard Nixon Talks with the White House Press Corps about his Nomination of Warren Burger, May 22, 1969
93
4.6.
Ronald Reagan Discusses His Nomination of Sandra Day O'Connor, July 7, 1981
95
4.7.
Ronald Reagan Thanks the Senate for Confirming Sandra Day O'Connor, September 21, 1981
96
4.8.
William (Bill) Clinton Nominates Ruth Bader Ginsburg to Be an Associate Justice, June 14, 1993
97
4.9.
Barack Obama Nominates Sonia Sotomayor to Be an Associate Justice, May 26, 2009
100
4.10.
Congress Challenges a Recess Appointment, October 14, 2004
102
4.11.
Ronald Reagan Introduces Robert Bork to the Nation, July 4, 1987
105
4.12.
Senator Edward Kennedy Objects to Robert Bork's Nomination, July 1, 1987
105
4.13.
Ronald Reagan Defends Robert Bork's Nomination, October 14, 1987
106
5.
The Development of the Modern Executive Branch and Its Officers
111
Executive Control over Officers and Officers' Enforcement Power
112
Executive Exercise of Independent Authority
114
When Can Criminal Prosecution Be Used?
118
Presidential Removal Power
119
The President's Use of Signing Statements to Object to Encroachments
124
Conclusion
126
5.1.
John Marshall Outlines the Finality of Presidential Appointments, February 24, 1803
126
5.2.
The Supreme Court Privileges an Executive Officer over a State-Granted Land Title, March 9, 1839
128
5.3.
The Supreme Court Allows the Executive to Advance Unspecified Payments, March 13, 1843
129
5.4.
The Fourth Circuit Denies a Right to Direct Presidential Review, April 12, 1955
129
5.5.
Andrew Jackson Protests His Censuring by the Senate, April 15, 1834
130
5.6.
The Supreme Court Compels a "Mere Ministerial Act," March 12, 1838
131
5.7.
Martin Van Buren Asks Congress to Check the Court, December 3, 1838
132
5.8.
Franklin D. Roosevelt's Brownlow Committee Presses for Reform, January 12, 1937
133
5.9.
The D.C. Circuit Upholds the Authority of the War Labor Board, June 2, 1944
136
5.10.
The Supreme Court Objects to the Appointment Process for the Federal Election Commission, January 30, 1976
137
5.11.
The Supreme Court Frowns on Criminal Prosecution for Violating an Executive Regulation, February 28, 1898
139
5.12.
The Supreme Court Allows Prosecution Based on a State-Defined Crime, January 14, 1957
139
5.13.
James Madison Defends Executive Control over Removal, June 17, 1789
140
5.14.
Chief Justice Chase Frets over Johnson's Impeachment, April 19, 1868
142
5.15.
The Supreme Court Supports the Executive's Authority to Terminate Officers, May 24, 1897
143
5.16.
The Supreme Court Allows Discretionary Dismissal of Executive Officers, April 6, 1903
144
5.17.
Chief Justice Taft Grants Broad Executive Authority over Appointees, October 25, 1926
145
5.18.
The Supreme Court Limits Removal of Officials with Responsibilities to Congress, May 27, 1935
147
5.19.
The Supreme Court Further Limits the Removal of Officials Based on Their Responsibilities, June 30, 1958
148
5.20.
The Supreme Court Allows Congress to Assign Appointment Power to a Judge, June 27, 1991
149
5.21.
The Supreme Court Upholds the Independent Counsel Statute, June 29, 1988
150
5.22.
The Supreme Court Limits the Scope of Delegation, June 29, 1959
152
5.23.
Ulysses Grant Objects to Congress's Effort to Close Consular Offices, August 14, 1876
153
5.24.
Dwight Eisenhower Objects to a Congressional Attempt to Influence Military Contracting, July 13, 1955
154
5.25.
Lyndon Johnson Objects to Legislative Vetoes, December 31, 1963
155
5.26.
Jimmy Carter Threatens Congress over Legislative Vetoes, June 21, 1978
156
5.27.
The Supreme Court Strikes Down Legislative Vetoes, June 23, 1983
157
6.
The Weakening of Legislative Direction in the Administrative State
161
The Decline of the Non-Delegation Principle
162
Executive Actions as the Basis for Private Rights?
166
Executive Checks on Congressional Constitutional Interpretations: Can the President Decline to Enforce a Law?
166
Conclusion
169
6.1.
The Supreme Court Allows the President to Impose a Tariff, February 29, 1892
169
6.2.
The Supreme Court Allows the President to Implement Recommendations of the Tariff Commission, April 9, 1928
171
6.3.
The Supreme Court Rejects Congressional Delegation of Labor and Economic Regulation, May 27, 1935
172
6.4.
The Supreme Court Allows Price Controls during Wartime, March 27, 1944
174
6.5.
The Supreme Court Allows the Secretary of State to Restrict Travel, May 3, 1965
175
6.6.
The Supreme Court Allows Revocation of a Passport Based on Administrative Regulation, June 29, 1981
177
6.7.
The Supreme Court Facilitates Discretionary Regulation of Designer Drugs, May 20, 1991
178
6.8.
The D.C. Circuit Endorses Voluntary Wage and Price Controls, June 22, 1979
180
6.9.
The Third Circuit Approves Nixon's Philadelphia Plan, April 22, 1971
181
6.10.
John F. Kennedy Establishes Collective Bargaining for Federal Employees, January 17, 1962
183
6.11.
The D.C. Circuit Rejects a Suit Asserting Rights Based on an Executive Order, July 29, 1965
184
6.12.
The D.C. Circuit Rejects Private Lawsuits Based on an Executive Order, May 2, 1980
185
6.13.
A Framer Explains Limits on Legislative Authority, December 1, 1787
186
6.14.
President Wilson Refuses to Enforce a Treaty Termination, September 24, 1920
187
6.15.
Chief Justice William Howard Taft Circumscribes Legislative Authority in Removal of Executive Officers, October 25, 1926
188
6.16.
A Court Orders President Nixon to Act, January 25, 1974
190
6.17.
An Executive Legal Analyst Discusses the History of Signing' Statements, November 3, 1993
192
6.18.
An Executive Legal Analyst Discusses the President's Latitude to Decline to Enforce Laws, November 2, 1994
194
6.19.
The Attorney General Endorses Presidential Non-Enforcement, July 31, 1860
196
6.20.
John F. Kennedy Informs Congress of His Intent to Reinterpret a Statute, January 9, 1963
197
6.21.
The American Bar Association Condemns Signing Statements, August 7-8, 2006
198
7.
Codetermination of Fiscal Policy
201
Impoundment
202
Congressional Mechanisms
203
The Line-Item Veto
204
Conclusion
205
7.1.
The Supreme Court Checks the President, February 18, 1975
205
7.2.
The D.C. Circuit Rejects Deferred Spending, January 20, 1987
206
7.3.
The Supreme Court Rejects a Deficit Reduction Plan, July 7, 1986
208
7.4.
The Supreme Court Limits Congress's Oversight, May 24, 1993
210
7.5.
The D.C. District Court Rejects the Line-Item Veto, April 10, 1997
211
7.6.
The Supreme Court Ducks the Line-Item Veto Controversy, June 26, 1997
214
7.7.
The Supreme Court Rejects the Line-Item Veto, June 25, 1998
215
8.
Emergency Executive Power
219
Curtailments of Rights and Habeas Relief before and during the Civil War
220
The Great Writ in the Late Nineteenth Century
223
World War II Era Controversies
224
Detainee Cases
226
Managing Civil Unrest
228
Security and Surveillance
230
Conclusion
231
8.1.
President Lincoln Suspends Habeas Corpus, April 27, 1861
232
8.2.
Chief Justice Taney Challenges President Lincoln, May 28, 1861
232
8.3.
Abraham Lincoln Issues the Emancipation Proclamation, January 1, 1863
234
8.4.
The Supreme Court Rejects Martial Law, April 3, 1866
234
8.5.
The Supreme Court Upholds a Labor Injunction, May 7, 1895
236
8.6.
The Supreme Court Clarifies Executive Authorization, April 14, 1890
238
8.7.
Franklin D. Roosevelt Authorizes the Internment of Japanese Americans, February 19, 1942
239
8.8.
The Supreme Court Upholds a Curfew, June 21, 1943
240
8.9.
The Supreme Court Legitimizes Internment, December 18, 1944
242
8.10.
The Supreme Court Limits the Military's Power to Intern Citizens, December 18, 1944
243
8.11.
The Supreme Court Questions Military Tribunals, February 25, 1946
244
8.12.
The Supreme Court Allows a Military Trial to Proceed, July 31, 1942
245
8.13.
President George W. Bush Authorizes Detentions, November 13, 2001
246
8.14.
The Office of Legal Counsel Endorses Broad Executive Discretion, January 22, 2002
247
8.15.
Alberto Gonzales Rejects the Applicability of the Geneva Convention, January 25, 2002
249
8.16.
An Assistant Attorney General Justifies Harsh Interrogation Techniques, August 1, 2002
250
8.17.
The Supreme Court Rejects Unreviewable Detention, June 28, 2004
252
8.18.
The Supreme Court Asserts Authority over Guantanamo Bay, June 28, 2004
253
8.19.
The Supreme Court Insists on More Process, June 29, 2006
254
8.20.
The Supreme Court Rejects Military Commissions Again, June 12, 2008
256
8.21.
The Supreme Court Limits the Justiciability of the Guarantee Clause, January 3, 1849
258
8.22.
The Supreme Court Rejects an Invitation to Oversee Military Intelligence Gathering, June 26, 1972
259
8.23.
The Supreme Court Declines to Address the Kent State Shootings, June 21, 1973
260
8.24.
The Eighth Circuit Permits Investigation into the Improper Use of Military Assets in a Civil Context, November 12, 1985
261
8.25.
The Supreme Court Questions Warrantless Wiretaps, June 19, 1972
263
8.26.
The D.C. Circuit Court Rejects a Plea for Secrecy, May 17, 1976
264
8.27.
Ronald Reagan Regularizes Intelligence Collection, December 4, 1981
265
8.28.
The D.C. Circuit Authorizes Expanded Intelligence Gathering, November 18, 2002
266
8.29.
The D.C. Circuit Addresses Wiretapping and New Technologies, June 9, 2006
267
9.
Presidential Diplomacy
271
Executive Management of Foreign Relations and the Question of Territories
272
The Status of Treaties as Law
274
Other International Agreements
276
Executive Prerogative in Foreign Policy Issues That Implicate Domestic Concerns
277
Conclusion
279
9.1.
George Washington Advises the Nation on Foreign Relations, September 19, 1796
280
9.2.
The Framers Debate Control over Foreign Affairs, June 29-September 18, 1793
281
9.3.
The Supreme Court Defines the Scope of Treaties, December 2, 1901
284
9.4.
The Supreme Court Asserts National Sovereignty, November 4, 1986
285
9.5.
Congress Exercises Commerce Authority to Direct Foreign Affairs, October 28, 2000
286
9.6.
Ronald Reagan Expresses Boundaries to the Senate, June 10, 1988
287
9.7.
The Supreme Court Weighs Treaties and Statutes, January 9, 1888
288
9.8.
The Supreme Court Privileges Treaties over State Law, March 7, 1796
289
9.9.
A Treaty Limits Missouri's Sovereignty, April 19, 1920
290
9.10.
Congress Seeks to Limit the Treaty Power, February 16, 1953
291
9.11.
The Supreme Court Ducks a Challenge by Congress to the President, December 13, 1979
292
9.12.
The Supreme Court Endorses Customary International Law as a Guideline, January 8, 1900
293
9.13.
The Supreme Court Decides that Formal Letters Are Binding Agreements, May 3, 1937
294
9.14.
The Supreme Court Privileges an Executive Agreement, February 2, 1942
295
9.15.
Robert Jackson Justifies the Acquisition of Naval and Air Bases in Exchange for Destroyers, August 27, 1940
296
9.16.
The Supreme Court Allows a Citizen's Prosecution under an Executive Agreement, July 11, 1957
297
9.17.
The Supreme Court Mandates Civil Trials instead of Courts Martial, June 10, 1957
298
9.18.
The Supreme Court Finds a Trade Agreement to Be Unenforceable, February 7, 1955
299
9.19.
Justice Sutherland Outlines a Theory on Congressional Authorization, December 21, 1936
300
9.20.
The Supreme Court Places Some Administrative Decisions Out of Bounds for Review, February 9, 1948
301
9.21.
The U.S. Court of Claims Upholds a Citizen's Right to Seek Recovery, January 11, 1955
302
9.22.
The Supreme Court Upholds an Executive Agreement, July 2, 1981
303
9.23.
President Carter Declares He Will Respect an Unratified Treaty, March 14, 1980
304
9.24.
President George W. Bush and Prime Minister Manmohan Singh Issue a Joint Statement, July 18, 2005
305
10.
Presidential War Making
307
Prize Cases and Presidential Authority
308
Executive Autonomy in War Making
310
The Legality of Military Interventions: The Controversy over Vietnam
311
The War Powers Resolution
313
Recent Controversies and the Courts' Refusals to Intervene
314
Conclusion
317
10.1.
Alexander Hamilton Explains the Executive's War Powers, March 14, 1788
318
10.2.
The Court Manages a Transition, February 24, 1795
319
10.3.
The Supreme Court Defines Congress's War Power, August 15, 1800
320
10.4.
The Supreme Court Defines the Limits of Presidential Power, February 27, 1804
321
10.5.
The Supreme Court Supports the President's Power to Determine Military Need, February 2, 1827
322
10.6.
The Supreme Court Locates War Power, August 11, 1801
323
10.7.
The Supreme Court Upholds a Dual War-making Strategy, February 26, 1813
323
10.8.
The Supreme Court Delineates the Meaning of Conquest, May 3, 1850
324
10.9.
The Supreme Court Outlines the President's Power to Command, September 13, 1860
325
10.10.
The Supreme Court Determines that the Civil War Was a War, March 10, 1863
326
10.11.
Theodore Roosevelt Updates the Monroe Doctrine, December 6, 1904
327
10.12.
The State Department Instructs the Senate, March 8, 1966
328
10.13.
The United States Joins the United Nations, December 20, 1945
330
10.14.
The D.C. Circuit Rejects a Challenge to the Vietnam War, February 6, 1967
330
10.15.
Another Challenge to the Vietnam War Is Rejected, April 20, 1971
331
10.16.
The State of Massachusetts Challenges the Vietnam War, October 21, 1971
332
10.17.
Members of Congress Challenge the Vietnam War, March 20, 1973
333
10.18.
The Supreme Court Declines to Hear a Challenge to the Vietnam War, March 6, 1972
335
10.19.
A Soldier Challenges the Escalation of the War, January 17, 1973
335
10.20.
President Nixon Disagrees with Congress, November 17, 1971
337
10.21.
The Second Circuit Rejects a Challenge to the Bombing of Cambodia, August 8, 1973
338
10.22.
President Nixon Vetoes the War Powers Resolution, October 24, 1973
339
10.23.
An Advisor Argues that a Military Mission Did Not Require War Powers Reporting, May 9, 1980
340
10.24.
President Reagan Commits Troops in Lebanon, October 12, 1983
341
10.25.
A District Court Refuses to Intervene in a War Powers Dispute, November 18, 1983
341
10.26.
A Circuit Court Rejects a Challenge to Covert Support for the Contras, August 13, 1985
343
10.27.
Congress Challenges the President, December 18, 1987
343
10.28.
A District Court Rejects a Soldier's Challenge Under the War Powers Resolution, December 13, 1990
344
10.29.
Congressional Representatives Try to Block War, December 13, 1990
345
10.30.
Congress Challenges President Clinton, February 18, 2000
347
10.31.
Military Personnel and Members of Congress Attempt to Prevent War in Iraq, March 13, 2003
348
10.32.
Memorandum on the President's Constitutional Authority to Pursue Suspected Terrorists, September 25, 2001
349
10.33.
Can a Computer Start a War? June 27, 1988
351
10.34.
Members of Congress Challenge President Obama's Actions in Libya, October 20, 2011
352
11.
Controversies over Concealment and Pardons
355
Controversies over Subpoenas and Other Demands for Information
356
The Nixon Cases
357
Recent Controversies over Concealment
359
The Power to Pardon
360
Modern Pardons
362
Conclusion
363
11.1.
Thomas Jefferson Resists a Subpoena, June 20, 1807
363
11.2.
The Supreme Court Permits Concealment in an Investigation, March 9, 1953
364
11.3.
The Supreme Court Allows Congressional Investigation of Communism, June 8, 1959
365
11.4.
The D.C. Circuit Orders President Richard Nixon to Comply, July 24, 1974
366
11.5.
The Supreme Court Thwarts the Senate, April 2, 1974
367
11.6.
The Supreme Court Rules Against President Nixon's Claim of Executive Privilege, July 24, 1974
368
11.7.
The Supreme Court Denies Privilege to an Ex-President, June 28, 1977
369
11.8.
The D.C. Circuit Facilitates an Investigation, June 17, 1997
370
11.9.
The D.C. Circuit Forecloses a Privilege, July 27, 1998
372
11.10.
The Supreme Court Refuses to Consider Executive Privilege for Secret Service Agents, November 9, 1998
373
11.11.
The Obama Administration Objects to Changes in the Reporting Requirements for the Intelligence Community, July 8, 2009
374
11.12.
The Supreme Court Outlines the Scope of the Power to Pardon, January 14, 1867
375
11.13.
The Supreme Court Creates a Pardon-Based Exception to a General Law, January 29, 1872
376
11.14.
A General Pardon Proclamation Guts a Congressional Act, March 25, 1872
377
11.15.
The Supreme Court Allows Refusal of a Pardon, January 25, 1915
377
11.16.
The Supreme Court Denies the Right to Refuse a Pardon, May 31, 1927
378
11.17.
The Supreme Court Allows a Pardon to Override Contempt of Court, March 2, 1925
379
11.18.
President Ford Pardons Richard Nixon, September 8, 1974
380
11.19.
President Clinton Justifies Some Pardons, February 18, 2001
381
12.
Immunity, Censure, and Impeachment
385
Immunity
386
Censure and Impeachment
388
Impeachment
388
Conclusion
391
12.1.
The Supreme Court Rejects Common Law Sovereign Immunity, April 19, 1880
391
12.2.
The Supreme Court Denies a Whistleblower the Right to Sue the President, June 24, 1982
392
12.3.
The Supreme Court Limits Who Can Receive Immunity, June 24, 1982
393
12.4.
A Circuit Court Limits Presidential Immunity, July 12, 1979
394
12.5.
The Supreme Court Extends Only Qualified Immunity to Cabinet Officials, June 29, 1978
396
12.6.
The Supreme Court Clears the Path for a Suit Against the President, May 27, 1997
397
12.7.
President Andrew Jackson Protests to the Senate, April 15, 1834
397
12.8.
President John Tyler Registers an Objection, August 30, 1842
399
12.9.
The Framers Discuss Impeachment, July 20, 1787
400
12.10.
James Madison Defends the Constitution's Separation of Powers, February 1, 1788
401
12.11.
Alexis de Tocqueville Considers Removal from Office, 1835
403
12.12.
The House Investigates President James Buchanan, June 16, 1860
404
12.13.
President Buchanan Objects to an Investigation, March 28, 1860
405
12.14.
A State Seeks to Thwart Presidential Action, April 15, 1867
407
12.15.
President Andrew Johnson Defies Congress, December 3, 1867
408
12.16.
Congress Responds to Andrew Johnson's Rejection of the Reconstruction Acts, December 4, 1867
409
12.17.
President Richard Nixon Receives Advice, February 1974
410
12.18.
The House of Representatives Prepares Articles of Impeachment Against Richard Nixon, July 27-30, 1974
412
12.19.
President Bill Clinton's Lawyers Respond to the Starr Report, September 13, 1998
414
12.20.
President Bill Clinton's Lawyers Demand a Definition of an Impeachable Offense, October 2, 1998
415
Appendix: Conflict and Collaboration and the Problem of Timing
419
Index
423