limitations of the american presidency

Limitations of the American Limitations of the American PresidencyPresidency

United States v. NixonUnited States v. Nixon, , 418 U.S. 683 (1974)418 U.S. 683 (1974)

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There are three branches of There are three branches of government:government:

LegislativeLegislativeExecutiveExecutive JudicialJudicial

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Federal Legislative BranchFederal Legislative Branch House of House of

RepresentativesRepresentatives SenateSenate

Responsible for Responsible for creatingcreating the laws the lawsTM

Federal Executive BranchFederal Executive Branch PresidentPresident Vice PresidentVice President CabinetCabinet

Responsible for Responsible for enforcingenforcing the laws the lawsTM

Who else is part of the executive Who else is part of the executive branch?branch?

FederalFederalLaw Enforcement Executive Law Enforcement Executive

AgenciesAgencies

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Federal Executive BranchFederal Executive Branch

Federal Judicial BranchFederal Judicial Branch United States Supreme CourtUnited States Supreme Court Lower Federal CourtsLower Federal Courts

Responsible for Responsible for interpretinginterpreting the laws the lawsTM

What are the three What are the three branches of government branches of government in Florida?in Florida?

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Same as the federal Same as the federal government!government!

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Florida’s Executive BranchFlorida’s Executive Branch

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Florida’s Executive BranchFlorida’s Executive Branch Who else is part of the executive Who else is part of the executive

branch?branch?

Law Enforcement Executive Law Enforcement Executive AgenciesAgencies

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Florida’s Legislative BranchFlorida’s Legislative Branch

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Florida’s Judicial BranchFlorida’s Judicial Branch

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What documents created the What documents created the three branches of federal and three branches of federal and

state government?state government?

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Is one branch superior to Is one branch superior to another?another?

Answer: No.Answer: No.

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Federal Separation of PowersFederal Separation of Powers The United States of America was The United States of America was

created to created to escapeescape being governed by being governed by a single person--such as a king--with a single person--such as a king--with unlimited power.unlimited power.

To avoid having one supreme branch To avoid having one supreme branch of government, the framers of the of government, the framers of the United States Constitution created a United States Constitution created a system of system of checks and balanceschecks and balances..

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What are the Separation of PowersWhat are the Separation of Powersin the United States Constitution?in the United States Constitution?

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Federal Checks on the Federal Checks on the LegislatureLegislature

The President can The President can vetoveto a law passed by a law passed by CongressCongress

The Supreme Court can The Supreme Court can strikestrike a law passed a law passed by Congress as unconstitutionalby Congress as unconstitutional

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Federal Checks on the ExecutiveFederal Checks on the Executive Congress can Congress can impeachimpeach the President the President The Supreme Court The Supreme Court defines the limitsdefines the limits of the of the

President’s powerPresident’s power

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Federal Checks on the JudiciaryFederal Checks on the Judiciary The President The President appointsappoints members of the members of the

Supreme Court…Supreme Court… With the With the advice and consentadvice and consent of the Senate of the Senate

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The Difference in FloridaThe Difference in Florida There is an There is an expressexpress provision in the Florida provision in the Florida

Constitution requiring the separation of Constitution requiring the separation of powers:powers:

ARTICLE II, SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

There is There is no such provisionno such provision in the United in the United States Constitution.States Constitution.

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What happens when one What happens when one branch of government claims branch of government claims

another branch is exceeding its another branch is exceeding its constitutional authority?constitutional authority?

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Judicial ReviewJudicial Review In the landmark case In the landmark case Marbury v. MadisonMarbury v. Madison, ,

5 U.S. 137 (1803), the Supreme Court 5 U.S. 137 (1803), the Supreme Court institutionalized the doctrine of institutionalized the doctrine of judicial judicial reviewreview. .

Judicial review permits the judiciary to Judicial review permits the judiciary to evaluate acts of the legislative and evaluate acts of the legislative and executive branches and invalidate those executive branches and invalidate those that violate the United States Constitution.that violate the United States Constitution.

The decision of the United States Supreme The decision of the United States Supreme Court on these matters is Court on these matters is finalfinal..

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Is Judicial Review Unlimited?Is Judicial Review Unlimited?

Is there any conduct by the executive Is there any conduct by the executive branch that is immune or insulated branch that is immune or insulated from judicial review?from judicial review?

ANSWER: ANSWER: YES. YES.

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Executive PrivilegeExecutive Privilege Executive PrivilegeExecutive Privilege is a power possessed by is a power possessed by

the President of the United States and other the President of the United States and other members of the executive branch allowing members of the executive branch allowing them to refuse to comply with subpoenas from them to refuse to comply with subpoenas from the legislative and judicial branches on matters the legislative and judicial branches on matters that are wholly within the executive branch.that are wholly within the executive branch.

The privilege, which is found nowhere in the The privilege, which is found nowhere in the Constitution, but arises from the separation of Constitution, but arises from the separation of powers doctrine, is intended to preclude the powers doctrine, is intended to preclude the legislative and judicial branches from infringing legislative and judicial branches from infringing on the sovereignty of the executive branch.on the sovereignty of the executive branch.

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Today, you will be a Today, you will be a justice on the United justice on the United States Supreme Court States Supreme Court and decide to what extent and decide to what extent executive privilege can be executive privilege can be limited by the judiciary.limited by the judiciary.

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But first –But first –

you should examine cases to you should examine cases to determine how the United determine how the United States Supreme Court has States Supreme Court has analyzed the scope of the analyzed the scope of the executive branch’s power.executive branch’s power.

United States v. ReynoldsUnited States v. Reynolds, , 345 U.S. 1 (1953)345 U.S. 1 (1953)

Three civilian employees were killed on a Three civilian employees were killed on a military plane that was engaged in a highly military plane that was engaged in a highly secret mission.secret mission.

The families of the victims filed a civil action The families of the victims filed a civil action against the United States seeking damages.against the United States seeking damages.

The families sought a court order requiring The families sought a court order requiring the Air Force to produce the official accident the Air Force to produce the official accident report of the crash, but the Government report of the crash, but the Government objected to the request, asserting the objected to the request, asserting the privilege against disclosure of military privilege against disclosure of military secrets. secrets.

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The United States Supreme Court held:The United States Supreme Court held:[P]rivilege belongs to the Government and must

be asserted by it. . . . There must be a formal claim of privilege, lodged by the head of the department which has control over the matter after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.

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Applying this test, the Supreme Court held Applying this test, the Supreme Court held that the documents were privileged:that the documents were privileged:

[W]hen the formal claim of privilege was filed by the Secretary of the Air Force, under circumstances indicating a reasonable possibility that military secrets were involved, there was . . . a sufficient showing of privilege to cut off further demand for the document.

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Youngstown Sheet & Tube Co. v. SawyerYoungstown Sheet & Tube Co. v. Sawyer, , 343 U.S. 579 (1952)343 U.S. 579 (1952)

While the United States was at war in While the United States was at war in Korea, the United Steelworkers of Korea, the United Steelworkers of America threatened to go on strike.America threatened to go on strike.

Worried that a strike would jeopardize Worried that a strike would jeopardize the national defense, President Truman the national defense, President Truman issued an executive order directing the issued an executive order directing the Secretary of Commerce to seize most Secretary of Commerce to seize most steel mills and order them to continue steel mills and order them to continue operating.operating.

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The owners of the steel companies filed an The owners of the steel companies filed an action in federal district court to enjoin action in federal district court to enjoin (stop) the seizure of their facilities.(stop) the seizure of their facilities.

The owners asserted that the President’s The owners asserted that the President’s and the Secretary’s actions were invalid and the Secretary’s actions were invalid because the seizure was not authorized by because the seizure was not authorized by Congress or by any constitutional provision.Congress or by any constitutional provision.

The federal district court The federal district court grantedgranted the the injunction and enjoined the President’s injunction and enjoined the President’s order directing seizure of the facilities.order directing seizure of the facilities.

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The United States Supreme Court The United States Supreme Court affirmedaffirmed the district court’s injunction. the district court’s injunction.

The Supreme Court explained that only The Supreme Court explained that only Congress can order the seizure of private Congress can order the seizure of private property to ensure that labor disputes do property to ensure that labor disputes do not stop production. Because the not stop production. Because the President’s actions were outside the President’s actions were outside the authority granted to him under the authority granted to him under the United States Constitution, they were United States Constitution, they were invalidinvalid..

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C & S Airlines v. Waterman S.S. Corp.C & S Airlines v. Waterman S.S. Corp., , 333 U.S. 103 (1948)333 U.S. 103 (1948)

The Civil Aeronautics Board granted C & S The Civil Aeronautics Board granted C & S Airlines a certificate to engage in overseas air Airlines a certificate to engage in overseas air transportation. A rival corporation, Waterman, transportation. A rival corporation, Waterman, applied for a similar certificate but its request applied for a similar certificate but its request was denied. Waterman filed an action in was denied. Waterman filed an action in federal court seeking review of the Board’s federal court seeking review of the Board’s denial order. denial order.

Under the relevant federal statute, the Board Under the relevant federal statute, the Board forwards any application for such a certificate forwards any application for such a certificate to the President. A decision by the Board to to the President. A decision by the Board to grant (or deny) an application is grant (or deny) an application is completelycompletely subject to the President’s approval. subject to the President’s approval.

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C. & S. Airlines v. Waterman S.S. Corp.C. & S. Airlines v. Waterman S.S. Corp., , 333 U.S. 103 (1948)333 U.S. 103 (1948)

The Supreme Court held that the lower federal The Supreme Court held that the lower federal court lacked the authority to review the court lacked the authority to review the Board’s order. The Supreme Court noted that Board’s order. The Supreme Court noted that Congress chose to give the President the final Congress chose to give the President the final say as to whether the Board can grant a say as to whether the Board can grant a certificate to engage in overseas or foreign certificate to engage in overseas or foreign transportation.transportation.

““The President, both as Commander-in-Chief The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, and as the Nation's organ for foreign affairs, has available intelligence services whose has available intelligence services whose reports neither are nor ought to be published reports neither are nor ought to be published to the world . . . . to the world . . . .

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C. & S. Airlines v. Waterman S.S. Corp.C. & S. Airlines v. Waterman S.S. Corp., , 333 U.S. 103 (1948)333 U.S. 103 (1948)

. . . It would be intolerable that courts, . . . It would be intolerable that courts, without the relevant information, should without the relevant information, should review and perhaps nullify actions of the review and perhaps nullify actions of the Executive taken on information properly Executive taken on information properly held secret.” held secret.”

The Supreme Court explained that once The Supreme Court explained that once the President has given his approval, the President has given his approval, “the final orders embody Presidential “the final orders embody Presidential discretion as to political matters beyond discretion as to political matters beyond the competence of the courts to the competence of the courts to adjudicate.” adjudicate.”

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United States v. NixonUnited States v. Nixon

Now for the case that you will decide.Now for the case that you will decide. Read the case materials provided Read the case materials provided

and circle or highlight all important and circle or highlight all important facts.facts.

Ask yourself the following questions:Ask yourself the following questions:

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Separation of PowersSeparation of Powers

How are the facts of this case How are the facts of this case similar to similar to ReynoldsReynolds, , YoungstownYoungstown, and , and WatermanWaterman??

How are they different?How are they different?

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You are Justices on You are Justices on the U.S. Supreme the U.S. Supreme Court.Court.

Here is the question Here is the question before the Court…before the Court…

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Separation of PowersSeparation of PowersLEGAL QUESTION:LEGAL QUESTION:

Does the separation of powers doctrine preclude the production of materials that may be relevant to a pending criminal investigation where the President raises a claim of executive privilege?

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Individually answer the question Individually answer the question – – Yes or NoYes or No

-Give 3 reasons in writing.-Give 3 reasons in writing.

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If you answer “Yes” – you are If you answer “Yes” – you are deciding for President Nixon.deciding for President Nixon.__________________________________________________________

If you answer “No” you are If you answer “No” you are deciding for the Special deciding for the Special Prosecutor. Prosecutor.

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• Form groups of 5Form groups of 5• Choose a Chief JusticeChoose a Chief Justice• Poll the Justices. How did each of you Poll the Justices. How did each of you

answer the question and why?answer the question and why?• Try to reach to a unanimous decision.Try to reach to a unanimous decision.• You have You have 10 minutes10 minutes to discuss and then to discuss and then

take a final poll.take a final poll.


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After each Court decides:After each Court decides:

Bring the Chief Justices to the Bring the Chief Justices to the front of the room to report on front of the room to report on the decision of each groupthe decision of each group

Tally results and announce the Tally results and announce the decision of the Courtdecision of the Court

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Separation of PowersSeparation of PowersLEGAL QUESTION:LEGAL QUESTION:

Does the separation of powers doctrine preclude the production of materials that may be relevant to a pending criminal investigation where the President raises a claim of executive privilege?

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What did the actual U.S. What did the actual U.S. Supreme Court decide Supreme Court decide and why?and why?

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Separation of Powers


The Supreme Court unanimously The Supreme Court unanimously held that the separation of held that the separation of powers doctrine did powers doctrine did notnot preclude preclude judicial review of a President’s judicial review of a President’s claim of executive privilege in a claim of executive privilege in a pending criminal investigation. pending criminal investigation.

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““[W]hen the ground for asserting privilege [W]hen the ground for asserting privilege as to subpoenaed materials sought for use as to subpoenaed materials sought for use in a criminal trial is based in a criminal trial is based only on the only on the generalized interest in confidentialitygeneralized interest in confidentiality, it , it cannot prevail over the fundamental cannot prevail over the fundamental demands of due process of law in the fair demands of due process of law in the fair administration of criminal justice. administration of criminal justice. The The generalized assertion of privilege must yield generalized assertion of privilege must yield to the demonstrated, specific need for to the demonstrated, specific need for evidence in a pending criminal trialevidence in a pending criminal trial.”.”

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limitations of the american presidency

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