Constitutional Crises and Constitutional Crises and Executive Branch Executive Branch

OverreachingOverreaching

Phil WeiserPhil WeiserUniversity of Colorado School of LawUniversity of Colorado School of Law

June 17, 2009June 17, 2009

OverviewOverview

• My Top Ten List

• Balance of Power and Separation of Powers

• Overarching Themes of Executive-Judicial Branch Conflicts

• The Most Dangerous Branch?

Counting Down . . .

1010

99

88

“John Marshall has made his decision, now let him enforce it”

77

66

• "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

55

44

33

22

11

Separation of Powers v. Balance of Separation of Powers v. Balance of PowersPowers

• In a true balance of powers case, the legislative and executive branch can battle it out using tools provided to one another.– In the case of a war waged with a declaration of war, Congress

has the ability to cut off funds for the war. Congress has sought to limit executive prerogatives with the War Powers Act.

• In separation of powers, the courts will step in to prevent the executive branch from exercising legislative power (i.e., lawmaking) and vice versa.– In practice, this doctrine has operated more to limit legislative

power (including preventing the legislative veto from being used) than executive branch power (because of the lack of a non-delegation doctrine). The exception is the line item veto.

Overarching ThemesOverarching Themes• Cases generally arise when executive branch

acts without legislative or constitutional authority (Article II power at lowest ebb).

• Military or security threats are often premise for executive branch claims of authority, under “Commander-in-Chief” clause or “inherent authority.”

• Judiciary more likely to act after the fact, i.e., once the exigency is passed. But see Pentagon Papers case.

• The complexities of modern social and economic problems have led to an accretion of executive branch authority. See TARP.

The Most Dangerous Branch?The Most Dangerous Branch?• The checks on the executive branch

depend on an active legislative branch (i.e., willing to investigate), an effective press (e.g., Woodward and Bernstein), and an engaged public.

• The judiciary will only rarely be willing to conclude that the President has violated the law and, even then, almost certainly after the damage is done.

Questions?Questions?