Substantive Law Study Support

Questions for Analysis and Responses

1. Would the decision in the Curtiss-Wright case be the same if the president’s acts had not been authorized by Congress? Quote language from the case to support your answer.
The Court suggests that congressional authorization is not needed here:

“It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.”

2. Do you think that the War Powers Resolution is constitutional? Why or why not?
This question calls for opinion—but students should discuss whether Congress can interfere with inherent powers of the president as commander in chief.

3. Why were there different results in Ex parte Milligan and Ex parte Quirin?

Milligan was a U.S. citizen arrested in the United States, whereas Quirin was not a

U.S. citizen and was arrested during war. This difference may not be important today after Rasul v. Bush.

4. Answer the following questions regarding the Morrison case:

a. Why did the Court find that the special prosecutor was an inferior officer?
First, the special prosecutor was subject to removal by a higher executive branch official. This indicated that she was to some degree “inferior” in rank and authority. Second, she was empowered to perform only certain, limited duties. An independent counsel’s role was restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Third, the office was limited in jurisdiction and could only act within the scope of the jurisdiction that was granted by the attorney general. Finally, the office was limited in tenure.
b. Why did Justice Scalia disagree?

Justice Scalia believed that inferior meant subordinate and the independent counsel was not subordinate to any officer in the executive branch, including the president.

5. According to Bush v. Boumediene, in the case of an “enemy combatant,” what procedural safeguards must be in place to justify the suspension of the right to a writ of habeas corpus?

The Court recognized that the prisoners were afforded fundamental rights under the U.S. Constitution and that the Military Commission Act (2006) was an unconstitutional suspension of the prisoner’s right to habeus corpus review.
Assignments and Projects

1. Brief the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), using the format in previous chapters.
Judicial History: A district court issued a preliminary injunction preventing the secretary of commerce from implementing Executive Order No.10340 and a Court of Appeals issued a stay. The Supreme Court granted certiorari.
Facts: Steel was in demand due to an escalation of the Korean War effort. Disputes arose between the steel industry management and the steel mill workers that evolved into the threat of a strike by the steel union. President Truman issued an executive order authorizing the secretary of commerce to take possession of the steel mills in order to keep them operating. The steel union and workers claimed the executive order exceeded the president’s executive power under the War Powers Clause of the U.S. Constitution and any implied powers.
Issue: Whether the president is authorized by the U.S. Constitution under the War Powers Clause to seize control of the steel mills through an executive order.
Holding: No, the president does not possess executive power by the Constitution, or any implied powers, to authorize the secretary of commerce to seize the nation’s steel mills. Rationale: The Court determined that there were no statutes or acts of Congress that granted the president the power to seize the steel mills. The Court also determined there was no authority found in the Constitution or in any historical context. The president cannot order policy, he can only suggest it; Congress has lawmaking authority.

2. Using a legal dictionary (many are available on the Internet), define the following terms found in the cases in this chapter (Note: The definitions supplied below are from Black’s Law Dictionary, Fifth Edition):
• Appellee: The party in a cause against whom an appeal is taken; that is, the party who has an interest adverse to setting aside or reversing the judgment. Sometimes also called the “respondent.”
• Plenary power: Authority and power as broad as is required in a given case.
• U.C.M.J.: Uniform Code of Military Justice; rules of conduct and criminal behavior for members of the Armed Forces.
• Ex parte: On one side only; by or for one party; done for, in behalf of, or on the application of one party only.

3. The cases described in this chapter often involved members of the president’s cabinet, including the secretary of commerce and the attorney general. Who currently holds those positions?
As of December 2011, the current position holders are:

• Secretary of Commerce: John E. Bryson, sworn in on October 21, 2011.

• Attorney General: Eric Holder, sworn in on February 3, 2009.

4. The confinement and trial of enemy combatants in the War on Terror has been a difficult issue. Research this issue, and write a short paper on the current status.
Student answers will vary, but elements of their papers may include the fact that many critics of the War on Terror (renamed the Overseas Contingency Operation , or OCO, by the Obama administration) feel that the conflict has been used to justify a war that could have been preventable, that it has allowed human rights abuses and other violations of international law to occur, and that it has gone on too long. Students may also discuss how President Obama has set a troop reduction goal. Students may also choose to focus on how the war has helped the people of Afghanistan and other “positive” outcomes.

5. Review the facts in Living with the Constitution at the beginning of this chapter.

Information about White House interns can be found on the White House website. Read that information and answer the following:

a. Could Jordan Maguire qualify to be an intern? Explain.

Jordan could qualify as long as she is 18 years old, a U.S. citizen, and has already enrolled in the college she will be attending in the fall. The selection process is highly competitive, so Jordan would need to apply for the position and include her history with the service organizations and her service as class president.

b. List the various departments in the White House in which interns might work.
The departments are: Cabinet Affairs, Chief of Staff, Communications Department, Domestic Policy Council, National Economic Council, Office of Digital Strategy, Office of Legislative Affairs, Office of Management and Administration, Office of Presidential Correspondence, White House Office of Public Engagement and Intergovernmental Affairs, Office of the First Lady, Office of the Vice President, Office of White House Counsel, White House Office of Presidential Personnel, White House Department of Scheduling and Advance, and White House Fellows.