(Youngstown as Congress can Cat.2) overrule which precludes further action (Reagan) Yes Yes: inherent, Yes implicit powers that Cong. cannot overcome Dames and Moore v. Regan Case upholding Reagan’s agreements to terminate legal proceedings in U.S. Courts involving claims by U.S. nationals against Iran to nullify attachments against Iranian property as a response to the Iranian Hostage Crisis. Implications: The Court also refined the applicable test” and “substantially cemented Justice Jackson’s concurring opinion in that case as “canonical.” Analysis: Does the Const. or Congress expressly grant the executive branch the power? Yes: Pres. may act because his power is at a maximum. No: First apply Black’s majority THEN apply Jackson’s concurrence as a result of Dames & Moore, but still considered a sliding scale rather than rigid categories Separation of Powers Internationally (War on Terror—Hamdi v. Rumsfeld) Bush: doesn’t matter Yes, even if Cong. Yes Yes what category bc says no because Cong. has no power inherent executive to act) authority Thomas Yes: text of Const. Yes: inherent Unclear but suggests authority yes Souter Yes: if Congress had Yes: minimal No. made a temporary power, determination, unless but then no inherent President can’t strike authority under a fair balance [i.e. Const. once Congress between security and does act. Pres cannot democracy] always strike the right balance Scalia No: even with No No inherent Congressional authority authority, Const. is clear that procedural protections are available unless Suspension clause is in effect
(Youngstown as Cat.2) Congress can overrule which precludes further action (Reagan) Yes Yes: inherent, implicit powers that Cong. cannot overcome Yes Dames and Moore v. Regan Case upholding Reagan’s agreements to terminate legal proceedings in U.S. Courts involving claims by U.S. nationals against Iran to nullify attachments against Iranian property as a response to the Iranian Hostage Crisis. Implications: The Court also “substantially refined the applicable test” and cemented Justice Jackson’s concurring opinion in that case as “canonical.” Analysis: Does the Const. or Congress expressly grant the executive branch the power? Yes: Pres. may act because his power is at a maximum. No: First apply Black’s majority THEN apply Jackson’s concurrence as a result of Dames & Moore, but still considered a sliding scale rather than rigid categories Separation of Powers Internationally (War on Terror—Hamdi v. Rumsfeld) Bush: doesn’t matter what category bc Cong. has no power to act) Yes, even if Cong. says no because inherent executive authority Yes Yes Thomas Yes: text of Const. Yes: inherent authority Unclear but suggests yes Souter Yes: if Congress had made a determination, unless President can’t strike a fair balance [i.e. between security and democracy] Yes: minimal temporary power, but then no inherent authority under Const. once Congress does act. Pres cannot always strike the right balance No. Scalia No: even with Congressional authority, Const. is clear that procedural protections are available unless Suspension clause is in effect No No inherent authority
Constitutional%20Law%20Case%20List-%20Colby-%20Spring%202014%20Outline.docx