Constitutional Law Question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
Fiction
Posts: 76
Joined: Tue Nov 25, 2008 7:00 pm

Constitutional Law Question

Postby Fiction » Fri Dec 30, 2011 7:24 pm

edit
Last edited by Fiction on Mon Nov 19, 2012 12:32 am, edited 1 time in total.

goodolgil
Posts: 923
Joined: Sat May 16, 2009 6:01 pm

Re: Constitutional Law Question

Postby goodolgil » Fri Dec 30, 2011 9:12 pm

Memory is a little fuzzy on all this, but in principle, no. Consider [deleted] v. U.S. (provision of law requiring President to obtain Senatorial consent before removing postmasters held unconstitutional because president is the sole executive). So generally, Congress can't interfere with "executive acts."

After this comes all the issues with the non-delegation doctrine and administrative agencies

User avatar
YourCaptain
Posts: 719
Joined: Sun Feb 13, 2011 11:26 pm

Re: Constitutional Law Question

Postby YourCaptain » Fri Dec 30, 2011 9:38 pm

no bro check you prosecutorial discretion

ak362
Posts: 146
Joined: Tue Jun 17, 2008 5:24 pm

Re: Constitutional Law Question

Postby ak362 » Fri Dec 30, 2011 10:17 pm

So long as the Court doesn't decide M.B.Z. on political question grounds and gets to the heart of the matter, then the Court might actually answer this question with more definite precision. See the D.C. Circuit's opinion below in Zivotofsky v. Sec'y of State where Judge Edwards essentially concludes in a concurrence that Congress can't do what you've proposed.

Fiction
Posts: 76
Joined: Tue Nov 25, 2008 7:00 pm

Re: Constitutional Law Question

Postby Fiction » Fri Dec 30, 2011 10:57 pm

edit
Last edited by Fiction on Mon Nov 19, 2012 12:29 am, edited 1 time in total.

Fiction
Posts: 76
Joined: Tue Nov 25, 2008 7:00 pm

Re: Constitutional Law Question

Postby Fiction » Fri Dec 30, 2011 11:14 pm

edit
Last edited by Fiction on Mon Nov 19, 2012 12:28 am, edited 1 time in total.

ak362
Posts: 146
Joined: Tue Jun 17, 2008 5:24 pm

Re: Constitutional Law Question

Postby ak362 » Sat Dec 31, 2011 12:04 am

Fiction wrote:
ak362 wrote:So long as the Court doesn't decide M.B.Z. on political question grounds and gets to the heart of the matter, then the Court might actually answer this question with more definite precision. See the D.C. Circuit's opinion below in Zivotofsky v. Sec'y of State where Judge Edwards essentially concludes in a concurrence that Congress can't do what you've proposed.


As above, wouldn't Zivotofsky deal with the unique an unreviewable power the Executive branch has in dealing with foreign sovereigns--Clause 2--rather than the power to faithfully execute the laws--Clause 3?


A law that restricted the Executive's power to deal with foreign nations would be an unconstitutional power, and obviously would not be enforced. However, a power that merely regulated how the Executive was to faithfully execute the law, would simply be another law for the Executive to faithfully execute.


I think if the Court (as the D.C. Circuit below did in its majority opinion) couches this as an issue of the unreviewability of the Executive's treatment of foreign states (ergo, a political question), then I think you're correct. However, if they get to the second question of whether there is an unconstitutional infringement, and they somehow decide that it was within Congress's constitutional discretion to pass legislation requiring passports to recognize Jerusalem as a part of the State of Israel, then I think you get into the territory of the Take Care Clause. I don't think it's so farfetched to think that the Court will come out this way -- why else would they grant certiorari on an otherwise routine political question? I doubt they'd do so just so they can reiterate what Judge Edwards had to say in his concurrence.

Though from what little I remember about Con Law, I remember the Take Care Clause only appearing in Lujan or some godawful standing case. Not to say that it doesn't appear elsewhere in other cases, but it's the only case from con law that I can remember invoking that rare nugget from Article II.

Fiction
Posts: 76
Joined: Tue Nov 25, 2008 7:00 pm

Re: Constitutional Law Question

Postby Fiction » Sat Dec 31, 2011 10:36 pm

edit
Last edited by Fiction on Mon Nov 19, 2012 12:28 am, edited 1 time in total.

User avatar
AreJay711
Posts: 3406
Joined: Tue Jul 20, 2010 8:51 pm

Re: Constitutional Law Question

Postby AreJay711 » Sat Dec 31, 2011 11:01 pm

Fiction wrote:The Executive Branch's Article II power is: to "take Care that the Laws be faithfully executed." Can Congress pass legislation requiring the Executive Branch to act in a particular manner without violating separation of powers? Most specifically, can Congress mandate a particular methodology when executing the laws?

In other words, could it pass a bill that says, "In faithfully executing any law passed by this legislature, the Executive Branch must do X"?

As a policy matter this seems like a generally bad idea, but I am just interested in the constitutionality of it.


It is just part of the law then. I'm almost positive that this is fine. It would be like saying that "Carbon dioxide emissions can't be above X. There shall be inspectors sent out to check the emissions level." Congress can be specific with the law as they want.

User avatar
stab master arson
Posts: 304
Joined: Tue Dec 09, 2008 3:23 pm

Re: Constitutional Law Question

Postby stab master arson » Sun Jan 01, 2012 7:28 pm

Q: Can Congress mandate a particular method the Executive Branch must follow in executing the law?
A: Sort of. The court would look at whether the statute increases the power of one branch at the expense of another. if yes, then it's unconstitutional. If no, then it's OK. See Bowsher v. Synar and Morrison v. Olson. See also, INS v. Chadha.

My B+ in Administrative Law a year ago says my analysis is beyond reproach.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: esrom55, LandMermaid, rwhyAn and 7 guests