Constitutional Law I

25 October 2008

• Back with the Steel Seizure case (Youngstown):
  So SCOTUS declares the seizure unconsitutional-- expressly forbidden by congress, and not in the president's reserved powers. The majority opinion is not so important or well-known as Jackson's opinion. Perhaps because it sets out three categories:
  1. When the president acts under powers expressly delegated by congress. President is strongest here.
  2. President's power is ambiguous, or it's not clear what congress thinks. President has middle powers here.
  3. President acts in defiance of congress. President is weakest here.
  So all those categories are ambiguous and therefore unhelpful, but it's worth noting because it's famous. Also, he knows that nothing the court says will keep power with congress if congress doesn't lose it (quoting Napoleon: "the tools belong to him who will use them."). So congress can let power slip though its fingers.

  Douglas has another concurring opinion (edited out of our materials). Douglas was almost FDR's pick for VP, and he was never very sympathetic to Truman. He says this is unconstitutional not for the reasons that everyone else says, but because this is a taking, and requires compensation.

  Chief Justice Vincent had to dissent: he was the one who had advised Truman that this would be OK in the first place.

  Arguments against the president:

  • All legislative power should be vested in the congress
  • President required to faithfully execute the laws; the absence of constraints (see counter-arguments) doesn't imply intent for a super-strong office.
  • Statute: Taft-Hartley tells the president what his counter-strike options are. Congress gave him the power to hold the union back for 80 days. The draft amendment to Taft-Hartley that said the president could sieze the industry failed. So congress Did Not Want seizure.
  • Monthly appropriations for munitions and supplies are not long-term authorization for seizing an industry. They have limited scope.
  • Humphrey's Estate: the president is limited. Also, after FDR's death, the response was to pass 22A, imposing term limits on the president-- we don't want runaway power in that office.
  • Marbury: the court has the power to order the president to do the court's will under statutory/constitutional requirements. (the first part of the holding: we can mandamus the president).
  • The basic point of the whole constitution is to prevent the accumulation of power in a single person's hands. And this is a unitary executive. Federal power in general is rising, so it's important to limit this. We don't need this on top of the fact that interstate commerce includes everything, etc. The executive branch has huge powers: appointing judges, treaties, appointing heads of agencies, exercise of policy power delegated by the executive branch. Plus the war power, incidentally. Enormous authority.
  • Beware of emergencies (Jackson): these are the means by which governments expand their constitutionally limited powers. They have a way of hanging on, too. And this isn't even a war. Congress hasn't signed over all authority to the president in this case.
  • A second-term president has no accountability: he's done anyway. So if that constraint is gone, we need to be even more suspicious of arbitrary presidential power. On the same note, congress has more open processes for making policy. Presidents no longer even rely so much on the agencies for their advice-- they rely on their personal staffs (e.g., FDR's kitchen cabinet). We should also be suspicious of policies developed in secret.
  This was pretty much the death knell for Truman's power. Counter-arguments in favor of the president:
  • Art II doesn't actually place many limits on the president, whereas there are lots of limits on congress in Art I. We actually don't know why this is for sure, but perhaps since the presiding officer at the constitutional convention was George Washington, and everyone knew he would be the first president, and maybe just out of politeness there are not many restrictions. Congress is only given 17 powers, but there are no such limits on the president.
  • You never know why an amendment fails-- that doesn't imply any specific intent. (Mortier is our principal case for this).
  • Congress keeps authorizing money for the war in Korea, and an order for 100 new tanks implies an order for the steel to make them. In effect, congress is authorizing what needs to get done in order to make that happen. Congress has ordered the president to supply the troops, so he must do so.
  • "Take care" means be vigilant that things are going well-- this is not a greatly limited power, and it's something we want the president to be able to do. Kids are dying over in Korea, and the president is in charge of taking care that this will be taken care of.
  • Congress delegated this power to the president (see American Trucking: congress doesn't have to delegate, but it can).
  • Statutes: Taft-Hartley gives the president the OPTION of preventing the strike, but this isn't necessarily the only option. They didn't say "don't sieze the mills," they just said "here's one thing you can do." And this law was passed over Truman's veto, and his vow that he would not use that power. And even if Taft-Hartley gives the president the power to impose an 80-day cool-off period, this was met: he actually got them to stall for 99 days through personal negotiation. So he's not violating that mandate, even if you thought Taft-Hartlet said the president was required to impose an 80-day wait.
  • Precedent: this isn't as bad as Korematsu-- wartime powers are strong, and the president can take extraordinary action. Note that Lincoln suspended habeas corpus, and didn't call congress into session just in order to avoid the distractions of politics. We've seen wartime suppression of 1A, taking things (like the coal industry! Truman had done this).
  • Marbury: the court can't actually order the president to do anything. And even in the explicit holding, the court only said they'd mandamus the president for straight mechanical issues, not policy issues.
  • And why is power shifting to the executive branch? Because the president actually can get stuff done. Congress gets bogged down in debates. We have to trade off between an effective but less accountable government and an accountable government that's too fraidy-cat to take a stance on important issues.
  • There are lots of limits on the president: judicial review, term limits, election. The courts also have the power to entertain lawsuits against the president. The press can exercise power over the president as well. And when the president is weak, others chip away further at the office's power. If we weaken the president further, we strengthen the agencies, and congress.
• The Nixon case is quite analogous to both Truman and Bush.
  Truman was president in the first war that the US didn't win. Nixon, too, took his sweet time getting out of Viet Nam, and that was an actual loss.

  But basically a special prosecutor asked to see the tapes of various conversations, and the president said no. The court ordered their production, and the president got on his helicopter and left. It wasn't clear that would happen.

  But anyway, it sort of carries on the Steel Seizure case, in the sense that this time the president was literally driven from office.

26 November

• Jones v. Clinton
  President can be sued while in office (says AR district court). Clinton had asked the court not to hear the case at all, realized that wouldn't work, and then just asked to have it postponed until after he leaves office. But the lower court said that the president can be sued, and can't claim immunity, and can't get a special delay.

  9-0 decision from SCOTUS (they like to do this when they know the case is going to be controversial). The opinion is by Stevens, probably the most liberal member of the court-- perhaps this was to give more weight to the decision. Basically, the president can not postpone the trial.

  Art. III: the courts have the rights to hear cases and controversies. Art. II: there's no protection for the president from lawsuits. And as for the "I'm too important to be sued right now," the court says it's just not that big a deal-- there's a concession: depositions can be given in the White House. (note that by making this concession, the court is conceding that the president IS different from everyone else).

  On the substance of this case, discovery took place. Jones put in her evidence about the harrassement, the fact that it was rebuffed, and she kind of got the cold shoulder at work. No massive retaliation, just sort of bad feelings. The lower court held that for sexual harrassment to be actionable under federal courts, you need either repeated harrassment or retaliation by the harrasser. So it appears that the president wins this case on the merits.

  But then there's an appeal to 8th Cir. While 8th Cir took this under advisement, SCOTUS ruled on a different sexual harrassment case, saying that harrassment is actionable based on a single instance and without retaliation. Of course, that's a different case, but 8th Cir is nervy. Just before oral arguments in 8th Cir, the president settles the case. This was mostly done before, except that the presidents advisors announced the settlement (in an anti-Jones tone) before it was in ink. Basically, saying that settling showed that she was lying. So the previous settlement would have been about $50K, and this time around, it's about $700K.

  Regardless of the settlement, the damage was done. He testified under oath about not having sexual relations. Lying under oath is not harrassment, it's a criminal act. It's pretty much like what Nixon did. And the trial judge back in AR slaps the president with $90K for contempt of court. And the AR bar revokes the president's license. So insult was heaped on insult. Plus legal bills of about $6M, which he's obligated to pay. And then impeachment ensues (but he's not convicted in the senate).

  Arguments in favor of the court:

  • 14A: equal protection
  • Marbury: for every wrong there must be a remedy under the constitution.
  • Separation of powers and Steel Seizure: how do we treat our presidents? And also Proxmeyer: there aren't exceptions to these rules.
  • Other precedent: the Magna Carta. Zowie, if you can cite that, you feel really good. The president is not above the law.
  • We want credible officials in office, people who are upright, people who haven't committed torts. Don't run for president if you have something to hide?
  • The executive branch, and the president as its head, have too much power. This is a separation of powers point: we worry about this because the president keeps getting more powerful. Congress waffled on its chance to limit the president after Steel Seizure, so the court needs to stand up for this fundamental tenet of the constitution. It's not a frontal assault on the executive, but it's a warning, and a diminution of stature.
  • The argument that the president will be distracted by endless suits is baloney. Most suits settle, and frivolous suits get dismissed and those who bring them get sanctioned.
  • If the president wins this case, that's pretty much the end of sexual harrassment suits. The idea of that body of law is that people in power shouldn't be allowed to force themselves on subordinates. If we say the president is too important to be a sexual harrasser, that pretty much undermines the whole idea of sexual harrassment suits. This issue might be more important than the language of the decision lets on: SCOTUS seems to have very little tolerance for sexual harrassmet.
  • Cynically: turnabout is fair play. Republicans are still smarting from Nixon, and it's the Democrats' turn to see what impeachment feels like. Note, by the way, that the senate Watergate committee (democratic) employed Hillary Clinton as a staffer. Nixon enthusiasts remember that.
  Note that the court didn't know when it ruled how devastating the testimony would be, but it really undermines both Clinton and the office. And arguments contra:
  • The president has to make all kinds of tough decisions: do we really want someone who is a goody-two-shoes, and limit ourselves only to people who have never really done anything agressive?
  • Allowing this suit will bring on other suits.
  • The president will not be able to concentrate on the primary duties of the office.
  • 26th Amendment-- this can wait, because the president will be out of office soon enough. Of course, Jones can also cite that: the reason we have that limitation is that we're afraid to too much power in the presidency.
  • The consititution says you can get rid of a president, but the impeachment process is not easy. It's not supposed to be an office sniped at with little nibbling bites.
  • Jones can say that the speech and debate clayse in Art I doesn't pertain to the president, but Clinton can say that the policy is very much relevant: immunity while in office is important to the job.
  • An awful lot of people get immunity (judges, e.g.), though not generally for personal behavior. If we don't limit the exposure of public servants, they're always at risk of lawsuits.
  • Sure, there have only been 3 suits against the president in the past is no comfort. Partly this is because nobody ever thought you could sue the president this way. Of course other presidents have done minor bad things, but everyone assumed that bringing down the office would be impossible. Even Marbury suggests that you can nominally take swipes at the president, but really the president should be left alone.
  • And the executive isn't too powerful. Making them vulnerable to lawsuits will undermine their ability to get stuff done. The president is controlled by voters, congress, the press, the agencies, etc. The big danger in the US is not powerful government, but weak government, unable to accomplish anything. If we diminish the presidency, pretty soon nobody will have the power: we need effective government, and this means we need a president who is at least nominally respected in the system. Examples:
    1. During the Nixon proceedings, the world perceived the whole process as being sort of suicidal for the U.S. What they were doing was tearing down their own president. In the long run, this just weakens the U.S. in the world by over-emphasizing domestic squabbles.
    2. The popular sentiment was that maybe we wanted to injure the president a little, but not destroy it. After Nixon, the presidency was weak and cautious for a few terms. And the nation as a whole never really supported crushing Clinton-- his popularity stayed high through the end of his term. That's why the Juanita Broderick rape allegations maybe got buried: we don't really want to tear the president down.
  • The president should be controlled by the population, we shouldn't try to go outside the established process. A jury should not supercede the judgement of the whole voting public. The peoples' vote should be much more respected.
  • The net result of this case will be that policy matters will be controlled by scandal. Instead of dealing with the merits of a presidents positions, we look for illegalities to exploit. This will cause lots of good people not to run for president, because they don't want to deal with scandalmongers. Look at Bork: opponents went through his garbage looking for material to use against him. We don't want to run the country that way.
  • The possibility of scandal will lead to illegitimate suits. Basically, it will be feasible to extort the president. Or people will sue just to get their moment in the spotlight. It tempts people to use this as a vehicle for their own advantage. No major coincidence, perhaps, that Jones's lawyers were die-hard republicans.
  • A delay is fine here-- it will foreclose the temptations of fame and extortion, but the legitimate case could still be dealt with.
  • Obviously, the president is going to want to mount a vigorous defense. Who wants to be president if you're likely to be liable for $6M fees? Do we want ex-presidents saddled with these debts, so they have to go give very expensive speaking engagements abroad to pay for them? And it does indeed distract the president: the Lewinsky affair may well have interfered with the president's attention to capturing Bin Laden.
  • This will cause presidents to have a bunker mentality. The "vast right wing conspiracy" comment by Hillary is evidence of this. We don't want the president lurking in a paranoid haze.
• To p. 371 for Tuesday.