1. Limitations of the American Presidency United States v. Nixon, 418 U.S. 683 (1974) TM

2. There are three branches of government: Legislative Legislative Executive Executive Judicial Judicial TM

3. Federal Legislative Branch House of Representatives Senate Responsible for creating the laws TM

4. Federal Executive Branch President Vice President Cabinet Responsible for enforcing the laws TM

5. Who else is part of the executive branch? Who else is part of the executive branch? Federal Federal Law Enforcement Executive Agencies TM Federal Executive Branch

6. Federal Judicial Branch United States Supreme Court Lower Federal Courts Responsible for interpreting the laws TM

7. What are the three branches of government in Florida? TM

8. Same as the federal government! TM

9. Florida’s Executive Branch TM

10. Florida’s Executive Branch Who else is part of the executive branch? Who else is part of the executive branch? Law Enforcement Executive Agencies TM

11. Florida’s Legislative Branch TM

12. Florida’s Judicial Branch TM

13. What documents created the three branches of federal and state government? TM

14. Is one branch superior to another? Is one branch superior to another? Answer: No. TM

15. Federal Separation of Powers The United States of America was created to escape being governed by a single person--such as a king--with unlimited power. The United States of America was created to escape being governed by a single person--such as a king--with unlimited power. To avoid having one supreme branch of government, the framers of the United States Constitution created a system of checks and balances. To avoid having one supreme branch of government, the framers of the United States Constitution created a system of checks and balances. TM

16. What are the Separation of Powers in the United States Constitution? TM

17. Federal Checks on the Legislature The President can veto a law passed by Congress The President can veto a law passed by Congress The Supreme Court can strike a law passed by Congress as unconstitutional The Supreme Court can strike a law passed by Congress as unconstitutional TM

18. Federal Checks on the Executive Congress can impeach the President Congress can impeach the President The Supreme Court defines the limits of the President’s power The Supreme Court defines the limits of the President’s power TM

19. Federal Checks on the Judiciary The President appoints members of the Supreme Court… The President appoints members of the Supreme Court… With the advice and consent of the Senate With the advice and consent of the Senate TM

20. The Difference in Florida There is an express provision in the Florida Constitution requiring the separation of powers: There is an express provision in the Florida Constitution requiring the separation of 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 no such provision in the United States Constitution. There is no such provision in the United States Constitution. TM

21. What happens when one branch of government claims another branch is exceeding its constitutional authority? TM

22. Judicial Review In the landmark case Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court institutionalized the doctrine of judicial review. In the landmark case Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court institutionalized the doctrine of judicial review. Judicial review permits the judiciary to evaluate acts of the legislative and executive branches and invalidate those that violate the United States Constitution. Judicial review permits the judiciary to evaluate acts of the legislative and executive branches and invalidate those that violate the United States Constitution. The decision of the United States Supreme Court on these matters is final. The decision of the United States Supreme Court on these matters is final. TM

23. Is Judicial Review Unlimited? Is there any conduct by the executive branch that is immune or insulated from judicial review? ANSWER: YES. TM

24. Executive Privilege Executive Privilege is a power possessed by the President of the United States and other members of the executive branch allowing them to refuse to comply with subpoenas from the legislative and judicial branches on matters that are wholly within the executive branch. Executive Privilege is a power possessed by the President of the United States and other members of the executive branch allowing them to refuse to comply with subpoenas from the legislative and judicial branches on matters that are wholly within the executive branch. The privilege, which is found nowhere in the Constitution, but arises from the separation of powers doctrine, is intended to preclude the legislative and judicial branches from infringing on the sovereignty of the executive branch. The privilege, which is found nowhere in the Constitution, but arises from the separation of powers doctrine, is intended to preclude the legislative and judicial branches from infringing on the sovereignty of the executive branch. TM

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

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

27. United States v. Reynolds, 345 U.S. 1 (1953) Three civilian employees were killed on a military plane that was engaged in a highly secret mission. Three civilian employees were killed on a military plane that was engaged in a highly secret mission. The families of the victims filed a civil action against the United States seeking damages. The families of the victims filed a civil action against the United States seeking damages. The families sought a court order requiring the Air Force to produce the official accident report of the crash, but the Government objected to the request, asserting the privilege against disclosure of military secrets. The families sought a court order requiring the Air Force to produce the official accident report of the crash, but the Government objected to the request, asserting the privilege against disclosure of military secrets. TM

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

29. United States v. Reynolds, 345 U.S. 1 (1953) Applying this test, the Supreme Court held 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. TM

30. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) While the United States was at war in Korea, the United Steelworkers of America threatened to go on strike. While the United States was at war in Korea, the United Steelworkers of America threatened to go on strike. Worried that a strike would jeopardize the national defense, President Truman issued an executive order directing the Secretary of Commerce to seize most steel mills and order them to continue operating. Worried that a strike would jeopardize the national defense, President Truman issued an executive order directing the Secretary of Commerce to seize most steel mills and order them to continue operating. TM

31. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) The owners of the steel companies filed an action in federal district court to enjoin (stop) the seizure of their facilities. The owners of the steel companies filed an action in federal district court to enjoin (stop) the seizure of their facilities. The owners asserted that the President’s and the Secretary’s actions were invalid because the seizure was not authorized by Congress or by any constitutional provision. The owners asserted that the President’s and the Secretary’s actions were invalid because the seizure was not authorized by Congress or by any constitutional provision. The federal district court granted the injunction and enjoined the President’s order directing seizure of the facilities. The federal district court granted the injunction and enjoined the President’s order directing seizure of the facilities. TM

32. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) The United States Supreme Court affirmed the district court’s injunction. The United States Supreme Court affirmed the district court’s injunction. The Supreme Court explained that only Congress can order the seizure of private property to ensure that labor disputes do not stop production. Because the President’s actions were outside the authority granted to him under the United States Constitution, they were invalid. The Supreme Court explained that only Congress can order the seizure of private property to ensure that labor disputes do not stop production. Because the President’s actions were outside the authority granted to him under the United States Constitution, they were invalid. TM

33. C & S Airlines v. Waterman S.S. Corp., 333 U.S. 103 (1948) The Civil Aeronautics Board granted C & S Airlines a certificate to engage in overseas air transportation. A rival corporation, Waterman, applied for a similar certificate but its request was denied. Waterman filed an action in federal court seeking review of the Board’s denial order. The Civil Aeronautics Board granted C & S Airlines a certificate to engage in overseas air transportation. A rival corporation, Waterman, applied for a similar certificate but its request was denied. Waterman filed an action in federal court seeking review of the Board’s denial order. Under the relevant federal statute, the Board forwards any application for such a certificate to the President. A decision by the Board to grant (or deny) an application is completely subject to the President’s approval. Under the relevant federal statute, the Board forwards any application for such a certificate to the President. A decision by the Board to grant (or deny) an application is completely subject to the President’s approval. TM

34. C. & S. Airlines v. Waterman S.S. Corp., 333 U.S. 103 (1948) The Supreme Court held that the lower federal court lacked the authority to review the Board’s order. The Supreme Court noted that Congress chose to give the President the final say as to whether the Board can grant a certificate to engage in overseas or foreign transportation. The Supreme Court held that the lower federal court lacked the authority to review the Board’s order. The Supreme Court noted that Congress chose to give the President the final say as to whether the Board can grant a certificate to engage in overseas or foreign transportation. “The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world.... “The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world.... TM

35. C. & S. Airlines v. Waterman S.S. Corp., 333 U.S. 103 (1948)... It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.”... It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” The Supreme Court explained that once the President has given his approval, “the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate.” The Supreme Court explained that once the President has given his approval, “the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate.” TM

36. United States v. Nixon Now for the case that you will decide. Now for the case that you will decide. Read the case materials provided and circle or highlight all important facts. Read the case materials provided and circle or highlight all important facts. Ask yourself the following questions: Ask yourself the following questions: TM

37. Separation of Powers How are the facts of this case similar to Reynolds, Youngstown, and Waterman? How are the facts of this case similar to Reynolds, Youngstown, and Waterman? How are they different? How are they different? TM

38. You are Justices on the U.S. Supreme Court. Here is the question before the Court… 38

39. Separation of Powers 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? TM

40. Separation of Powers Individually answer the question – Yes or No -Give 3 reasons in writing. 40

41. Separation of Powers If you answer “Yes” – you are deciding for President Nixon. _____________________________ If you answer “No” you are deciding for the Special Prosecutor. 41

42. Form groups of 5 Form groups of 5 Choose a Chief Justice Choose a Chief Justice Poll the Justices. How did each of you answer the question and why? Poll the Justices. How did each of you answer the question and why? Try to reach to a unanimous decision. Try to reach to a unanimous decision. You have 10 minutes to discuss and then take a final poll. You have 10 minutes to discuss and then take a final poll. Separation of Powers 42

43. Separation of Powers After each Court decides: Bring the Chief Justices to the front of the room to report on the decision of each group Bring the Chief Justices to the front of the room to report on the decision of each group Tally results and announce the decision of the Court Tally results and announce the decision of the Court 43

44. Separation of Powers 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? TM

45. What did the actual U.S. Supreme Court decide and why? TM Separation of Powers

46. United States v. Nixon The Supreme Court unanimously held that the separation of powers doctrine did not preclude judicial review of a President’s claim of executive privilege in a pending criminal investigation. TM

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