The President and the Courts 8 December 2008

Announcements Prepare yourself for the “take home” final to be distributed on 13 January and will be due on 15 January. Format will consist of a total of eight questions in two sections. You will be asked to address four questions (500 words in length). Each question is worth 25%.

The ‘Two Presidency’ Theory Presidents may be able to exert greater power over foreign affairs than domestic policy Foreign policy questions often require a rapid response President may be less constrained Recall our discussion about presidential success in the legislative arena and the constraints on presidential power Recall also the importance of presidential popularity and the “rally effect”

Treaty Power Treaties are official agreements with foreign countries that are ratified by the Senate (by 2/3rds). Because a small number of Senators can block a treaty, Presidents opt instead for executive agreements These are agreements with foreign countries that require only a presidential signature. Power not found explicitly in the Constitution. Most executive agreements either are extensions of treaties ratified by the Senate or involve routine presidential actions that have been authorized by Congress.

Use of Executive Agreements

Power as Commander in Chief Prior to Civil War presidents seldom acted on their own on military matters. Abraham Lincoln first to action based on an expanded interpretation of commander in chief. Theodore Roosevelt: sent ships to Japan without Congressional approval of cost Not since WWII has Congress officially declared war. Truman fought the Korean War without any congressional declaration at all.

Vietnam Focused attention on the issue of executive authority Eisenhower and Kennedy sent “advisors” Johnson asked for Tonkin Bay Resolution Authorized response to attack with armed force (was told that U.S. had NOT invaded N. Vietnam’s territorial waters – but in reality they had) Gave president the authority “to take all necessary measures” to repel any attacks and to “prevent further aggression.” Resolution was legal basis for a war that would last 8 more years but based on misinformation from the Johnson administration.

War Powers Resolution The 1973 congressional resolution (passed over Nixon’s veto) requires the president to notify Congress formally upon ordering U.S. troops into military action. Troops must be withdrawn unless Congress approves the presidential decision within 60 days after notice of the military action has been received. Although presidents have maintained that the resolution is unconstitutional, they nevertheless have sought congressional approval for military actions

War Powers Resolution & 9/11 At Bush’s request Congress passed a joint resolution authorizing military force shortly after 9/11. One dissenting vote in the House. President authorized to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept 11, or harbored such organizations or persons, in order to prevent any future acts of international terrorism.” No limit placed on time period in which president may act. Second resolution (October 2002) focused continuing threat posed by Iraq. But required Bush to exhaust “diplomatic or other peaceful means” of resolving the conflict prior to resorting to force.

The Courts—The Third Branch Powerful, but not Democratic Supreme Court has nine unelected judges appointed for life and are independent from one another Responsive? Accountable?

Power of the Supreme Court Originally intended to interpret the constitution Principal of Judicial Review Allows the SC to declare the acts of president and Congress unconstitutional This gives the court a great deal of power. How can this power be constrained?

Limitations on power Courts are reactive (can only hear cases brought before them) Limited by the ability of Congress and the president to write new laws (or constitutional amendments) Lack of enforcement Public opinion

The Structure of the Federal Judiciary Only the Supreme Court is explicitly mentioned in the Constitution (Article III). Nature of the judiciary beyond the Supreme Court deferred to Congress. Judiciary Act of created the federal judiciary. The federal judiciary is organized as a three-layered pyramid.

The Supreme Court The Supreme Court is the court of final appeal. Under its appellate jurisdiction, the Court may hear cases appealed from the lower courts or directly from the highest state courts when an important constitutional question is in dispute. Decision on which cases to accept is based on the Rule of Four.

Supreme Court’s Case Load In a few rare situations the SC has original jurisdiction (meaning it is the first to hear the case). Example: disputes between states Another unusual route is certification, when an appeals court requests a review to settle a question of law. The majority of cases are appeals (via the Court of Appeals).

Deciding Cases English Common law Principal of stare decisis (precedent) Judicial restraint vs. judicial activism

Reasoning Majority opinions The Court majority sends a signal to lower courts, lawyers, potential litigants and others how they are likely to treat similar cases in the future. Concurring opinions Agrees with decision but not reasoning Dissenting opinions Explains why they disagreed with the ruling. Dissents can be important as they lay the groundwork for future decisions.

Checks on the Judiciary Executive Checks Appointments Legislative Checks Appropriation of funds Constitutional amendments Amending laws to overturn court’s rulings Public Opinion Influence judicial opinions enforcement The Court stare decisis Judicial restraint

Civil Liberties We classify as civil liberties the Constitution’s protections from government power. Freedom of speech, religion and the right to privacy are examples. Typically violations of these liberties occur when some government agency, at any level, oversteps its authority.

Who protects civil liberties? Does the constitution guarantee certain absolute civil liberties? Truth is that our interpretations of these freedoms constantly change. Question of how to balance individual liberties with societal rights

Cases Involving Civil Liberties Free Speech, Schenck v. United States (1919) clear and present danger Freedom of Press, New York Times v. Sullivan (1964) Libel violates 1 st Amendment Obscenity, Roth v. United States (1957) Court attempts to define obscenity Establishment Clause, Lemon v. Kurtzman (1971) Three part test for judging constitutionality of division between church and state Gun Control, United States v. Miller (1939) 2 nd Amendment does not provide for absolute guarantee Right to Privacy, Roe v. Wade (1973) Landmark case on abortion

The Patriot Act – A Threat to Civil Liberties? Change in protections from unreasonable search and seizure Detention of non-citizens, immigrants Racial profiling

Bush v. Gore (2000) Supreme Court decides the 2000 Presidential Election By a vote of 7-2, the Court held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature Equal Protection of the laws (14th Amendment): The state-wide standard (that a "legal vote" is one in which there is a 'clear indication of the intent of the voter’. No guarantee that each county would count the votes the same way.