The Supreme Court in the Tripartite

Book used: Constitutional Law, 16th Edition, 2007. Sullivan and Gunther. Foundation Press.

The Supreme Court traditionally and continually clarifies its role as a member of the tripartite, co-equal federal government by explicitly writing self-imposed restraints into its judicial decisions. Some of the self-imposed rules include: standing, a refusal to answer political questions, ripeness, mootness, and the ashwander rules. Of particular relevance regarding whether or not the Supreme Court accelerated the expansion of presidential power at the expense of Congress, one must inspect when the Court will entertain political questions and when it decides to shut the door on the parties (Executive v. Congress) quarrel.

Jackson created three (Congress v. Executive) specific justiciability guidelines in Youngstown Sheet & Tube Co. v. Sawyer. The first stated that there are express or implied powers of the President plus the powers that Congress may delegate. Thus, if the branches are united, then the Court might accept to hear the case if the “Federal Government as an undivided whole lacks power” (248). The second explained that there are times when the Executive relies on its own independent responsibility to rectify a contemporary situation in the event of “congressional inertia, indifference, or quiescence…” (249). The third premise ascertained that the President would initiate orders at odds with Congress, which would “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter” (249).

In Youngstown Sheet & Tube Co. (1952), the Supreme Court struck down President Truman’s executive order to seize domestic steel mills during the Korean War. In this case, the Supreme Court did not expand presidential power as the executive order was ruled illegal. The Court determined that the President’s power to faithfully execute the law refutes the possibility to be a lawmaker (246). In this manner, the President’s order did not originate from Congress, but from himself, and the “Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control” (247). In this case, the Supreme Court did not allow the President to usurp presidential power at the expense of congress. Finally, Justice Jackson explicitly wrote how each of his three political power-relationship thresholds was not compatible with President Truman’s actions.

The Court does not strictly adhere to Jackson’s three part classification of executive actions in all cases concerning separation of powers. Rehnquist in Dames & Moore v. Regan wrote that these cases do not fall “neatly into one of [Jackson’s] three pigeonholes, but rather at some point along the spectrum…” (257). In this judicial case, the Court found that “congressional acquiescence [occurs]… without obtaining advice and consent of the Senate” (259). The Court ruled in favor of President Carter and his Executive Orders to suspend contractual claims, nullified attachments and liens in an effort to secure the release of American hostages held by Iran (256).

The Court was prudent to recognize that Congress actually approved of the President’s actions as “of vital importance to the United States” and thus did not believe that the President was usurping power, since Congress approved of the President’s actions (259). Further, the court explicitly stated the narrowness of their decision, stating that “We do not decide that the President possesses plenary powers to settle claims, even as against foreign governmental entities” (259). In this case, the Court allowed congress to acquiesce but was careful to retain its authority to deny the President this authority in the future.

Jackson’s three part classification was explicitly mentioned by Kennedy in Hamdan v. Rumsfeld (2006). Kennedy found that this case was within Jackson’s third category—that the president’s orders were at odds with Congress. The Court denied the President implied acquiescence of legal authority to change the Uniform Code of Military Justice through the Joint Resolution called the Authorization for Use of Military Force (AUMF). Hamdan, the alleged driver for Osama Bin Laden, was not charged because he was “caught redhanded in a theater of war,” but due to an agreement that predated AUMF (284). The Court decided that President W. Bush did not have the authority to bypass Congress and further wrote that the “procedures adopted to try Hamdan also violate the Geneva Conventions” (285). Justice Stevens thus commented on the necessity of the Executive and Congress to be mindful of international law, which might appear as though the federal government should recognize international law when creating laws.

The Treaty Power of the Constitution presents a grey area regarding international Executive agreements, since the Court has held that they have “similar dignity” as a congressional treaty (Fino). As a member of the United Nations, the United States does not admit to cede any sovereignty or power to an external international organization. However, “American courts began to cite the UN Charter or UN resolutions on human rights” while resolving issues and laws created for the US government (Fino). As a response, Congress created the Bricker Amendments. These amendments stated that constitutional congressional laws supersede international agreements and that Congress may police executive agreements. Hence, Congress aimed to protect its constitutional power from both presidential power and international laws. But the Court waits for specific cases to determine whether or not the constitutionality and the justicibility of the enforced laws deserve a hearing.

Congress at times created laws to increase Executive authority and at other times attempted to increase its own powers. For example, Congress gave President Clinton the power of the line item veto—to strike out provisions of a bill to which he opposed. In Clinton v. City of New York, the Court found that the bill violated the Presentment Clauses of Article I, Section 7 (304). So Congress desired to increase the power of the Executive but the Court ruled against it since it was contradictory to the Constitution. As a separate example, in INS v. Chadha, the Court ruled that the legislative branch may not exercise a legislative veto because that also violated the Presentment Clauses, clauses 2 and 3 (293). In these cases, the Court did not accelerate expansion of presidential power at the expense of congress.

Overall, the Court does not involve itself with political questions unless the law demonstrates that it has forgotten the Constitution. Chief Justice Burger in Bowsher v. Synar summarized his view regarding the relationship between the Executive and Congress when he wrote, “…once Congress makes its choice in enacting legislation, its participation ends” (309). In this manner, the Court has accepted political cases because they have found it necessary to remind the Executive and Congress that the Constitution is the supreme law of the land.

Upon examination of the above cases, therefore, and in keeping with Justice Burger, it does not appear that the Supreme Court accelerated expansion of presidential power at the expense of Congress. With due diligence, the Court has mostly held the transmission of power in neutral—in keeping with the Constitution. Of course, I am specifically talking about the Court—not the Presidency–and how Presidents might have usupred power. Additionally, I am addressing whether or not Congress has given the President more power.

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  1. Pingback: Review for American Politics Comp. Exams | Political Pipeline

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