Terms:

Military Tribunal v. District Court: Military tribunals in the United States are military courts
designed to try members of enemy forces during wartime, operating outside the scope of
conventional criminal and civil proceedings. The judges are military officers and fulfill the
role of jurors. Military tribunals are distinct from courts-martial. District courts are the
general trial courts of the United States federal court system. They deal with most of the
court cases. Both civil and criminal cases are filed in the district court, which is a court of
law, equity, and admiralty. A military tribunal is an inquisitorial system based on charges
brought by military authorities, prosecuted by a military authority, judged by military
officers, and sentenced by military officers against a member of an enemy army.
Habeus Corpus: a writ requiring a person to be brought before a judge or court, especially
for investigation of a restraint of the person's liberty, used as a protection against illegal
imprisonment.
Court Martial: in the United States are trials conducted by the U.S. military or by state
militaries. Congress has used its enumerated powers under the Constitution in conjunction
with the Necessary and Proper Clause to create specialized tribunals, including courtsmartial. Article I, Section 8 of the Constitution says Congress shall have the power "To make
Rules for the Government and Regulation of the land and naval forces."
Assusiary: A formal criminal charge against a person alleged to have committed an offense
punishable by law, which is presented before a court or a magistrate having jurisdiction to
inquire into the alleged crime. 6th Amendment provides U.S. terms of accusation and the
constitutional right to be informed of accusations. Thus accusations must be well-worded.
Privileged Immunity: The Privileges and Immunities Clauses are found in Article IV of the U.S.
Constitution and the Fourteenth Amendment. Both clauses apply only to citizens of the United
States. The privileges and immunities that are protected under Article IV include the right to
receive protection from state government; the right to acquire and possess all kinds of
property; the right to travel through or reside in any state for purposes of trade, agriculture,
or professional endeavors; the right to claim the benefit of the writ of Habeas Corpus; the
right to sue and defend actions in court; and the right to receive the same tax treatment as
that of the citizens of the taxing state.
Presentment Clause: The Presentment Clause (Article I, Section 7, Clauses 2 and 3) of the
United States Constitution outlines federal legislative procedure by which bills originating in
Congress become federal law in the United States.
Formalism v. Functionalism: Formalism is look at the law as it is. Functionalism says that we
can understand the law in a functional sense. National Labor Relations Board v. Canning.
Willing to allow wiggle room for whats considered a recess, but not willing to go as far as the
president was willing to.
Pardoning Power: In the United States, the pardon power for federal crimes is granted to the
President of the United States under Article II, Section 2 of the United States Constitution
which states that the President "shall have power to grant reprieves and pardons for offenses
against the United States
Line Item Veto: In United States government, the line-item veto, or partial veto, is the power
of an executive authority to nullify or cancel specific provisions of legislation

Legislative Veto: a provision that allows a congressional resolution (passed by a majority of

congress, but not signed by the President) to nullify a rulemaking or other action taken by an
executive agency.
Prisoners of War: A prisoner of war is a person, whether combatant or non-combatant, who is
held in custody by a belligerent power during or immediately after an armed conflict.
Removal: In the United States, removal jurisdiction refers to the right of a defendant to move
a lawsuit filed in state court to the federal district court for the federal judicial district in
which the state court sits. This is a general exception to the usual American rule giving the
plaintiff the right to make the decision on the proper forum. Removal occurs when a
defendant files a "notice of removal" in the state court where the lawsuit is filed and the
federal court to which the defendant would like to remove the case.
Process for Passing Legislation: a representative sponsors a bill. The bill is then assigned to a
committee for study. If released by the committee, the bill is put on a calendar to be voted
on, debated or amended. If the bill passes by simple majority (218 of 435), the bill moves to
the Senate. In the Senate, the bill is assigned to another committee and, if released, debated
and voted on. Again, a simple majority (51 of 100) passes the bill. Finally, a conference
committee made of House and Senate members works out any differences between the House
and Senate versions of the bill. The resulting bill returns to the House and Senate for final
approval. The Government Printing Office prints the revised bill in a process called enrolling.
The President has 10 days to sign or veto the enrolled bill.

Study Guide

Background

Decision

Rationale

Article II provides each

state legislature decides
how electors are
chosen. Popular vote
determines electoral
votes in Florida. Florida
was extremely narrow
so Gore demanded a
recount. Florida
Supreme Court
demanded recount on
December 8, 2000.

U.S. Supreme Court

voted 5-4 to stay the
recount.
Laws:
Equal Protection Clause
of the 14th amendment
-> states may not
abridge the priveleges
of citizens.
Article II: Each state
legislature determines
electors. Gives all
power to the legislature

Scalia: The principal

issue in the appeal is
whether the votes are
legally cast votes.
Counting of votes does
irreparable harm to
Bush and the country by
casting a cloud over
election legitimacy.
Count first and rule on
legality afterwards is not
acceptable method for
vote counting.

Article II Basic
Considerations
Bush v. Gore (2000)

Faithful Execution of
the Laws

Study Guide

Background

Decision

Rationale

In re Neagle (1890)

U.S. Marshal David

Neagle was appointed
by the attorney general
to serve as a bodyguard
to Justice Stephen J.
Field. David S. Terry
approached and
appeared to be about to
attack Field. Neagle
shot and killed him.
Neagle was arrested by
California authorities on
a charge of murder. The
United States sought to
secure the release of
Neagle on a writ of
habeas corpus. The
government relied on a
statute that made the
writ available to those
"in custody for an act
done or omitted in
pursuance of a law of
the United States."

In favor of Neagle.

Section 3 of Art. II of the

U.S. Constitution
requires that the
Executive Branch "take
care that the laws be
faithfully executed." The
court determined that
the appointment of
bodyguards to Supreme
Court Justices ensured
the faithful execution of
the law of the United
States. The court also
relied on a statute
granting marshals "the
same powers, in
executing the laws of
the United States, as
sheriffs and their
deputies in such State
may have, by law, in
executing the laws
thereof."

Domestic Powers of
the President

U.S. Const. Art. III, Sec.

788 of the Revised
Statutes of the United
States

Study Guide

Background

Decision

Rationale

Clinton v. City of New

York (1998)

The Line Item Veto Act

of 1996 allowed the
president to "cancel",
certain provisions of
appropriations bills, and
disallowed the use of
funds from canceled
provisions for offsetting
deficit spending.
Clinton began using the
line-item veto,
prompting several
entities to file suit in a
second attempt to have
the Act declared
unconstitutional.
President Clinton's
cancellation of certain
provisions of the
Balanced Budget Act of
1997 that eliminated
certain liabilities.

In favor of Congress.

In a majority opinion
written by Justice John
Paul Stevens, the Court
ruled that because the
Act allowed the
President to unilaterally
amend or repeal parts
of duly enacted statutes
by using line-item
cancellations, it violated
the Presentment Clause
of the Constitution,
which outlines a specific
practice for enacting a
statute. The Court
construed the silence of
the Constitution on the
subject of such
unilateral Presidential
action as equivalent to
"an express prohibition",
agreeing with historical
material that supported
the conclusion that
statutes may only be
enacted "in accord with
a single, finely wrought
and exhaustively
considered, procedure
and that a bill must be
approved or rejected by
the President in its
entirety.

Subpoenas issued from

House that told EPA to
produce documents.
EPA ordered to withhold
documents. Chairman
of Judiciary requested
independent counsel.
Olson sued Morrison
(the counsel). The
counsel took powers
from the president and
created a 4th branch.

Morrison v. Olson, 487

U.S. 654, is a case
where the Supreme
Court of the United
States decided, by a 7
1 margin, that the
Independent Counsel
Act was constitutional.

Morrison v. Olson
(1988)

U.S. Const. art. I; 2

U.S.C. 691 et seq.
(1994 ed., Supp. II)
(Line Item Veto Act of
1996)

The Independent
Counsel Act is
constitutional, as it does
not increase the power
of the judiciary or
legislative branches at
the expense of the
executive.

Study Guide

Background

Decision

Rationale

National Labor
Relations Board v.
Canning (2014)

Alexander Hamilton
wrote that the
appointment power was
ordinarily confined
jointly to the President
and the Senate, but
considering it unlikely
that the Senate would
remain continuously in
session, the
Constitution allowed the
President to make
temporary appointments
when the Senate is in
recess. Since the
advent of air travel, the
United States Senate
has no longer needed to
have long recesses.
NLRB v. Canning dealt
specifically with Noel
Canning, a Pepsi
distributor affected by a
ruling of the National
Labor Relations Board.
The NLRB had found
that Noel refused to
execute a collective
bargaining agreement
with a labor union,
allegedly in violation of
federal law.

Unanimous Decision for

Canning

For purposes of the

Recess Appointment
Clause, the Senate is in
session when it says
that it is if, under its own
rules, it retains the
capacity to transact
business.The first
question the opinion
addressed dealt with the
scope of the phrase "the
recess of the Senate"
and whether that is
limited to the intersession recess between
the two formal annual
sessions of a Congress
or extends to intrasession recesses. The
ambiguity of the specific
text of the clause made
the Court hold that the
clause's purpose is
broad, allowing the
President to ensure the
continued functioning of
government even when
the Senate is away.
Secondly, the Court
addressed the phrase
"vacancies that may
happen during the
recess of the Senate"
The Court argued that a
narrow interpretation
risks undermining
powers granted by the
Constitution. Finally, the
opinion dealt with the
calculation of the length
of the Senate's recess.
During periods of
recess, the Senate
meets in pro forma
sessions. The Court
found that pro forma
sessions count as
sessions, not recesses.

U.S. Const., Art. II, 2,

cl. 3

Study Guide

Background

Decision

Rationale

Myers v. United States

(1926)

In 1920, Frank S.
Myers, a First-Class
Postmaster in Portland,
Oregon, was removed
from office by President
Woodrow Wilson. A
1876 federal law
provided that
"Postmasters of the
first, second, and third
classes shall be
appointed and may be
removed by the
President with the
advice and consent of
the Senate." Myers
argued that his
dismissal violated this
law, and he was entitled
to back pay for the
unfilled portion of his
four-year term.

In Favor of United
States.

The President has the

exclusive authority to
remove executive
branch officials. Chief
Justice William Howard
Taft, noted that the
Constitution mentions
the appointment of
officials, but is silent on
their dismissal. The
Constitutional
Convention, however,
showed that this silence
was intentional: the
Convention believed it
was implicit in the
Constitution that the
President did hold the
exclusive power to
remove his staff, they
are an extension of the
President's own
authority.

Study Guide

Background

Decision

Rationale

Humphreys Executor
v. United States (1938)

Roosevelt was
dissatisfied with William
Humphrey, a member of
the Federal Trade
Commission, as
Humphrey did not
support his New Deal
policies vigorously
enough
Roosevelt fired
Humphrey: Humphrey
continued to come to
work at the FTC even
after he was formally
fired.However, the
Federal Trade
Commission Act
permitted the President
to dismiss an FTC
member only for
"inefficiency, neglect of
duty, or malfeasance in
office." Roosevelt's
decision to dismiss
Humphrey was based
solely on political
differences rather than
job performance or
alleged acts of
malfeasance.

Sided with Humphrey.

The President may not

remove any appointee
to an independent
regulatory agency
except for reasons
Congress has provided
by law. The Court
distinguished between
executive officers and
quasi-legislative or
quasi-judicial officers.
The latter may be
removed only with
procedures consistent
with statutory conditions
enacted by Congress;
the former serve the
President and may be
removed at his
discretion. The Court
ruled that the Federal
Trade Commission was
a quasi-legislative body
and so the President
could not fire an FTC
member solely for
political reasons; thus,
Humphrey's firing was
improper

U.S. v. Nixon (1974)

U.S. Const. art. I; U.S.

Const. art. II; Federal
Trade Commission Act

On June 17, 1972,

8-0 with US over Nixon
about five months
before the general
Constitution
election, five burglars
U.S. Const. art. II
broke into Democratic
headquarters located in
the Watergate building
complex in Washington,
D.C. In October 1973,
Nixon arranged to have
Cox fired in the
Saturday Night
Massacre. However,
public outrage forced
Nixon to appoint special
prosecutor, Leon
Jaworski, who was
charged with conducting
the Watergate
investigation.

After ruling that the

Court could indeed
resolve the matter and
that Jaworski had
proven a "sufficient
likelihood that each of
the tapes contains
conversations relevant
to the offenses charged
in the indictment," the
Court went to the main
issue of executive
privilege. The Court
rejected Nixon's claim to
an "absolute,
unqualified Presidential
privilege of immunity
from judicial process
under all
circumstances."

Study Guide

Background

Decision

Rationale

Mississippi v.
Johnson (1867)

The state of Mississippi

attempted to sue
President Andrew
Johnson for enforcing
Reconstruction.

With Johnson

In the course of his

enforcement of the
Reconstruction Acts,
President Johnson was
necessarily exercising
discretion and so could
not be sued. The court
decided, based on a
previous decision of
Marbury v. Madison that
the President has two
kinds of task: ministerial
and discretionary.

Nixon v. Fitzgerald
(1982)

U.S. Const. art. II

Fitzgerald filed a lawsuit 5-4 for Nixon

against claiming that he
lost his position as a
U.S. Const. art. II
contractor with the
United States Air Force
because of testimony
made before Congress
in the 1970s. Among the
people listed in the
lawsuit was former
President Richard
Nixon. Nixon argued
that a President cannot
be sued for actions
taken while in office.

Clinton v. Jones (1997) On May 6, 1994, former

Arkansas state
employee Paula Jones
filed a sexual
harassment suit against
U.S. President Bill
Clinton. She claimed
that Clinton, then
Governor of Arkansas,
propositioned her.

9-0 with Jones

The President is entitled

to absolute immunity
from liability for
damages based on his
official acts. the
President is not immune
from criminal charges
stemming from his acts
while in office. The court
noted that a grant of
absolute immunity to the
President would not
leave the President with
unfettered power. The
Court stated that there
were checks on
presidential action that
did not apply with equal
force to other executive
officials.
The Constitution does
not protect the
President from civil
litigation involving
actions committed
before he entered office.
the Court ruled that
separation of powers
does not mandate that
federal courts delay all
private civil lawsuits
against the President
until the end of his term
of office.

Study Guide

Background

Ex Parte Grossman
(1925)

In 1920, legal action

9-0 for President
was taken against
Grossman for selling
Article II
liquor at his place of
business in violation of
the National Prohibition
Act. He violated a
federal court injunction
by continuing to sell
alcoholic beverages. He
was found guilty of
criminal contempt of
court and sentenced to
one year in prison and a
$1,000 fine. President
Calvin Coolidge issued
a pardon that reduced
Grossman's sentence to
payment of the fine.

the Court found that a

presidential pardon for a
criminal contempt of
court sentence was
within the powers of the
executive. There is
nothing in the words
"offenses against the
United States" that
excludes criminal
contempts. Actions that
violate the dignity of the
federal courts violate
the law of the United
States, making these
contempts offenses
against the United
States. The president's
pardon authority
includes such offenses.

Murphy v. Ford (1975)

Is a pardon
constitutional without
the existence of an
indictment,
conviction, or even
charge that a crime has
been committed?

The fact that Nixon was

not indicted or convicted
of an offense against
the United States does
not affect the validity of
the pardon (Ex parte
Garland).

U.S. v. Curtiss-Wright
Export Corp. (1936)

Domestic Powers

Decision

Sided with Ford

Article II

May Congress issue a

Sided with U,S. 7-1
resolution that concerns
external affairs, that
Article II
gives the president the
power to control U.S.
involvement in foreign
affairs? Curtiss-Wright
was charged with
conspiring to sell fifteen
machine guns to Bolivia,
which was engaged in
an armed conflict in the
Chaco.

Rationale

The president alone has

the power to speak or
listen as a
representative of the
nation. The president
does not get this power
from an act of Congress
but from the
Constitution. Congress
may provide the
President with a special
degree of discretion in
external matters which
would not be afforded
domestically.

Study Guide

Background

Decision

Rationale

Mistretta v. United
States (1989)

Congress created the

United States
Sentencing Commission
under the Sentencing
Reform Act of 1984.
This Commission was to
attack the wide
discrepancies in
sentencing by federal
court judges by creating
sentencing guidelines
for all federal offenses.
It was to be part of the
judicial branch, with
members appointed by
the President and
approved by the
Senate. John Mistretta
(convicted of three
counts of selling
cocaine) claimed that
the Act violated the
delegation-of-powers
principle by giving the
Commission "excessive
legislative powers."

Sided with United

States 8-1

The Court found the Act

to be valid because
although Congress
cannot generally
delegate its legislative
power to another
Branch, the
nondelegation doctrine
does not prevent
Congress from
obtaining assistance
from coordinate
Branches. The test of
validity is that an
"intelligible principle"
must be established by
the legislature where
the agency of the
delegated authority
must adhere to specific
directives that govern its
authority.

Congress authorized
either House of
Congress to invalidate
and suspend
deportation rulings of
the United States
Attorney General.
Chadha had stayed in
the U.S. past his visa
deadline. Though
Chadha conceded that
he was deportable, an
immigration judge
suspended his
deportation. The House
of Representatives
voted without debate or
recorded vote to deport
Chadha.

Court sides 7-2 with

Chad

Immigration and
Naturalization Service
v. Chadha (1983)

Sentencing Reform Act

of 1984.

Article I

The Court held that the

particular section of the
Act in question did
violate the Constitution.
Recounting the debates
of the Constitutional
Convention over issues
of bicameralism and
separation of powers,
Chief Justice Burger
concluded that even
though the Act would
have enhanced
governmental efficiency,
it violated the "explicit
constitutional standards"
regarding lawmaking
and congressional
authority.

Study Guide

Background

Decision

Bowsher v. Synar
(1986)

Due to rising
7-2 with Synar
government budget
deficits during the first
Article I
term of the Reagan
Administration,
Congress passed the
Gramm-RudmanHollings Deficit Control
Act of 1985. The act
was designed to
eliminate the federal
budget deficit by
restricting spending
during fiscal years 1986
through 1991. Under the
law, if maximum
allowable deficit
amounts were
exceeded, automatic
cuts, as requested by
the Comptroller
General, would go into
effect.

Rationale
The Court found that the
duties which the
Congress delegated to
the Comptroller General
were unconstitutional. A
two step process led
Chief Justice Burger to
this conclusion. First, in
exploring the statute
defining the provisions
of the Comptroller
General's, it was clear
to Burger that this
officer was subservient
to the legislative branch.
Second, Burger
concluded that the
Comptroller General
was being asked to
execute the laws and,
thus, was intruding on
the prerogatives of the
executive branch.

War and National

Emergencies
The Prize Cases (1863) Lincoln proclaimed a
blockade of southern
ports in April 1861.
Congress authorized
him to declare a state of
insurrection by the Act
of July 13, 1861. By the
Act of August 6, 1861,
Congress retroactively
ratified all Lincoln's
military action. These
cases involved the
seizure of vessels
bound for Confederate
ports prior to July 13,
1861.

Sided with Lincoln

Article II

The President had the

power to act. A state of
civil war existed de facto
after the firing on Fort
Sumter (April 12, 1861)
and the Supreme Court
would take this fact into
account. Though neither
Congress nor the
President can declare
war against a state of
the Union, when states
waged war against the
United States, the
President was "bound to
meet it."

Study Guide

Background

Decision

Rationale

Ex Parte Milligan
(1866)

Lambden P. Milligan
was sentenced to death
by a military
commission in Indiana
during the Civil War; he
had engaged in acts of
disloyalty. Milligan
sought release through
habeas corpus from a
federal court.

9-0 for Milligan

Davis, speaking for the

Court, held that trials of
civilians by
presidentially created
military commissions
are unconstitutional.
Martial law cannot exist
where the civil courts
are operating.

Some men planned an

act of saboteury. Some
were german, some
were citizens. All were
instructed to destroy
U.S. War facilities.

Sided with USA

Korematsu v. United
States (1944)

During World War II,

Presidential Executive
Order 9066 and
congressional statutes
gave the military
authority to exclude
citizens of Japanese
ancestry from areas
deemed critical to
national defense and
potentially vulnerable to
espionage.

6-3 for the United States The Court sided with the
government and held
Constitution
that the need to protect
against espionage
outweighed
Korematsu's rights.
Justice Black argued
that compulsory
exclusion, though
constitutionally suspect,
is justified during
circumstances of
"emergency and peril."

Youngstown Sheet +
Tube v. Sawyer (1952)

In April of 1952, during

6-3 for Youngstown
the Korean War,
Sheet and Tube
President Truman
issued an executive
order directing
Secretary of Commerce
Charles Sawyer to seize
and operate most of the
nation's steel mills. This
was done in order to
avert the expected
effects of a strike by the
United Steelworkers of
America.

Ex Parte Quirin (1942)

Article III?

Laws of War, Article III

The Court upheld the

jurisdiction of a United
States military tribunal
over the trial of several
German saboteurs in
the United States.
Considered the
Germans War
participants and thus
violating the laws of war.

The Court found that

there was no
congressional statute
that authorized the
President to take
possession of private
property. The Court also
held that the President's
military power as
Commander in Chief of
the Armed Forces did
not extend to labor
disputes.

Study Guide

Background

Decision

Rationale

Zivotofsky v. Kerry
(2015)

Does a federal statute

that directs the
Secretary of State to
record the birthplace of
an American citizen
born in Jerusalem as
"Israel," if requested to
do so, impermissibly
infringe on the
President's power to
recognize foreign
states?

5-4 for Kerry

The federal statute

unconstitutionally
usurps the President's
power to recognize
foreign nations in
relation to consular
reports.Article II vests
the President with the
power to recognize
foreign states and to
take control over
recognition decisions.
Congress thus, must
involve the President.

Hamaan v. Rumsfeld
(2006)

Article II

Salim Ahmed Hamdan, 5-3 for Hamdan

Osama bin Laden's
chauffeur, was
Article I and II
imprisoned by the U.S.
military in Guantanamo
Bay. He filed for a writ of
habeas corpus in to
challenge his detention.
Before the district court
ruled on the petition, he
received a hearing from
a military tribunal, which
designated him an
enemy combatant. A
few months later, the
district court granted
Hamdan's habeas
petition, ruling that he
must first be given a
hearing to determine
whether he was a
prisoner of war under
the Geneva Convention
before he could be tried
by a military
commission.

The Supreme Court,

held that neither an act
of Congress nor the
inherent powers of the
Executive laid out in the
Constitution expressly
authorized the sort of
military commission at
issue in this case.
Absent that express
authorization, the
commission had to
comply with the laws of
the United States and
the laws of war. The
Geneva Convention
could therefore be
enforced by the
Supreme Court.
Hamdan's exclusion
from certain parts of his
trial deemed classified
by the military
commission violated
both of these, and the
trial was therefore
illegal.