Presidential Powers & Immunities

• These notes concern the ways in which the Constitution protects the presidency, covering executive immunity and privilege, presidential power in domestic and foreign affairs, federalism, and interstate commerce.

Executive Immunity

• Mississippi v. Johnson (1867)
  • Mississippi sued President Johnson, alleging that he was enforcing unconstitutional Reconstruction Acts.
  • The Supreme Court cannot prevent the President from carrying out executive responsibilities.
  • Presidential duties required by the Reconstruction Acts were not ministerial.
• Nixon v. Fitzgerald (1982)
  • Fitzgerald, a former employee, claimed he was unlawfully fired in retaliation for truthful testimony before Congress.
  • Framers provided POTUS absolute immunity from civil damage.
  • Immunity depends on office functions, not title; checks and balances counter absolute immunity.
  • Presidents cannot be sued for actions taken in an executive capacity, immunity is implied.
• Clinton v. Jones (1997)
  • Jones sued Clinton for sexual harassment based on actions when he was Governor of Arkansas.
  • Presidents may be sued for unofficial conduct while in office.
  • Executive immunity doesn't cover unofficial acts.
• Trump v. U.S. (2024)
  • Concerns presidential immunity for actions that allegedly obstructed the election.
  • The court divides presidential immunity into three categories based on the action.
  • Presidents have immunity for actions in their constitutional authority as a protection for executive activity (enumerated power).
  • Unofficial actions the court sees as degrees of difference between what is written in the constitution.

Executive Privilege

• U.S. v. Burr (1807)
  • VP Burr was charged with treason; Chief Justice Marshall requested a letter from Jefferson as evidence.
  • Jefferson gave the letter and executive privilege was challenged in court.
• U.S. v. Nixon (1974)
  • Nixon was asked to hand over tapes from the Oval Office after the Watergate Scandal.
  • Courts can determine executive privilege claims; the President is subject to judicial orders.
  • Executive privilege is inherent but doesn't apply in this case; it protects military, domestic, and foreign secrets.

The Constitution and Presidential Power

• Two distinct areas of presidential power: domestic and foreign affairs.
• Constitution gives president less discretion in domestic affairs.
• Constitution gives president greater discretion in foreign affairs.

Emergency Power

• In re Debs (1895)
  • A railroad strike led to nationwide disruption; President Cleveland sent in troops.
  • Court ruled the executive has power to protect interstate commerce and the mail, upholding the injunction to stop obstruction of highways.
• Youngstown Sheet & Tube Co. v. Sawyer (1952)
  • During the Korean War, President Truman seized steel mills to prevent a strike.
  • Truman's action was inconsistent, unauthorized by Congress
  • President doesn't have power to seize property, and executive action wasnt authorized by Congress
  • Presidential authority is greatest when authorized by Congress.

Establishing Foreign Policy

• U.S. v. Curtiss-Wright Export Corp. (1936)
  • Congress authorized the president to place an arms embargo to reduce conflict in Bolivia and Paraguay.
  • The President has power when national security is threatened
  • Congress could do this because the president is the "sole organ" for external relations.
• Haig v. Agee (1981)
  • Agee, an ex-CIA agent, exposed identities of agents and President revoked his passport.
  • The act did not specifically remove powers from Sec. of State's revocation powers.
• U.S. v. Alvarez-Machain (1992)
  • US and Mexico had an extradition treaty.
  • The Supreme Court said it was permissible to kidnap him because the treaty didn't ban kidnapping.
  • Congressional silence does not mean there are no actions allowed to be taken.

War Powers

• The Prize Cases (1863)
  • Lincoln ordered a naval blockade of Southern ports after the attack on Ft. Sumter, without congressional approval.
  • President believed he had power because of a state of insurrection.
  • In times of military necessity, the president must act.
• Ex Parte Milligan (1866)
  • Milligan, a confederacy supporter, was convicted in military court.
  • Neither President nor Congress could suspend habeas corpus if civilian courts were operating.
• Ex Parte Quirin (1942)
  • Nazi saboteurs were arrested in the US without uniforms and categorized as enemy combatants.
  • Pres and Congress gave authorizations to try enemy combatants by military tribunal.
• Hamdi v. Rumsfeld (2004)
  • Hamdi, arrested in Afghanistan, was defined as an enemy combatant. -Hamidi had due process right to challenge his classification because he is an American citizen

Federalism Under the Constitution

• National government has limited, enumerated power granted by the Constitution.
• State governments possess general, inherent police power.
• State policies are valid unless prohibited by the Constitution.
• McCulloch v. Maryland (1819)
  • Maryland cannot use its power to tax to dictate national policy.
  • Maryland / any state cannot use its own legislative powers override national policy
• Garcia v. San Antonio Metropolitan Transit Authority (1985)
  • Congress's fair labor standards act, which included municipal transit workers
  • the states are employers just like any employers
• Seminole Tribe of Florida v. Florida (1996)
  • Congress said that a tribe could sue Florida if they do not negotiate in good faith and this happens so they do
  • Congress does not have power to abrogate state sov immunity (except when enforcing 14th)
  • Congress cannot tell a state it has to be agreeable to being sued without its consent
• Alden v. Maine (1999)
  • Federal law cannot force states to waive their sovereign immunity.
  • states must be done in the political system, not the legal one.
• New York v. U.S. (1992)
  • Federal government can't require it to take responsibility for the waste based on the 10th Amendment
  • Congress can't pass a law designed to dictate the power of the states
• Printz v. U.S. (1997)
  • Congress did not give the ability to compel states to enforce federal law.**anti commandeering principle

National Power

• Two important contexts: the Interstate Commerce Clause and the Tax and Spending Clause.

What is the Power to Regulate?

• Gibbons v. Ogden (1824)
  • Two ferries competing between NY and NJ.
  • The Supreme Court sided with the one that Congress had authorized. Congress has can use whatever means they find necessary to achieve its goals

What Constitutes Interstate Commerce?

• U.S. v. E.C. Knight (1895)
  • EC Knight said they were purely intrastate because of the way they processed the sugar. Only the buying and selling was interstate
  • distinction between production/manufacturing and buying/selling a product. Production is intrastate commerce -The INTENT of a product does not determine if it is commerce --congress cannot just regulate everything that touches commerce
• Shreveport Rate Case (1914)
  • SCOTUS said you can regulate things that hurt interstate commerce, like this railway company's rates
• Swift and Co. v. U.S. (1905)
  • Sale of cattle begins at stockyards and doesn't end until final sale
• Hammer v. Dagenhart (1918)
  • Keating-Owens Child Labor Act said goods of child labor could not be shipped out of state because it was cheaper for some state. -Court said congress could not use its interstate commerce power to override state police powers. Congress cannot do indirectly what it cannot do (regulate manufacturing) directly
• Schechter Poultry Corp. v. U.S. (1935)
  • -SCOTUS sided with Schecter saying neither the chickens nor the employees were part of interstate commerce -As far as the poultry is concemed, the stream of commerce has ended
• Carter v. Carter Coal Co. (1936)
  • James Carter sues his own company to prevent them from complying because there was no adverseness.

Interstate Commerce and FDR

• National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937)
  • The steel company was discriminating against employees that were union members
• Wickard v. Filburn
  • Filburn claims the excess wheat was grown purely for his own consumption and filed a suit

Textbook Cases

• In re Neagle (1890)

  • Question was whether Pres, without congressional action, could issue exec order to issue bodyguard.

• Clinton v. City of New York (1996)

  • After dispute of Line Item Veto Act, Clinton invoked line-item on 80 items, including a budget act that would provide more $ for NYC.
  • Nothing in the Constitution allows the president to repeal, enact, or amend statutes and changes the political process and violated separation of powers.

• Morrison v. Olson (1988)

  • Counsel violates the appointments clause when appointed by Pres; prosecutors are not "inferior officers"

• Ex parte Grossman (1925)

  • The president commuted a sentence for criminal contempt of court
  • Power to pardon for criminal contempt of court was within powers of the executive

• Murphy v. Ford (1975)

  • Federal judge decided that President Ford could pardon Nixon.

• Korematsu v. United States (1944)

  • Court said that President could restrict civil liberties during wartime, and set precedent that racial decision-making should be under strict scrutiny

• Dames & Moore v. Regan (1981) The Court held that the International Emergency Economic Powers Act constituted a specific congressional authorization for the President to order the transfer of Iranian assets.

• Zivotofsky v. Kerry, Secretary of State (2015) Congress may not require State Dept to put "Jerusalem, Israel" on a birth certificate and passport if requested by the parents

• Scott v. Sandford (1857) Scott is still a slave because even though Scott could be a state's citizen, he could not be one of the US, so he can't sue in federal courts.

• Coyle v. Smith (1911) Oklahoma has power to declare its own seat of government

• Murphy v. National Collegiate Athletic Association (2018) Court found that PASPA's provision prohibiting state authorization of sports gambling violates the anti commandeering doctrine under the 10th amendment

• Stafford v. Wallace (1922) activities controlled by the Act did indeed burden the freedom of commerce and fell within the regulatory jurisdiction of Congress

• Champion v. Ames (1903) Power to regulate includes the power to prohibit.

• United States v. Darby (1941) Court held that the purpose of the FLSA was to prevent states from using substandard labor practices to their own economic

• Trump v. Vance (2020) Court said prosecutors have the right to obtain information and congress does not have absolute immunity