Separation of Powers Part 2

The President's foreign affairs power comes not from the Constitution but the U.S. as a sovereign, which preceded the Constitution, making the power broader and giving him some implied powers based on past practices of presidents.

Additionally, the President should have greater rights as the representative or "sole organ" of the U.S. in foreign affairs.

Defendants conspired to sell in the U.S. machine guns to Bolivians who were engaged in conflict with Chaco in violation of Joint Resolution of Congress and a declaration by the President.

The Court held that Congress could delegate its functions to the executive because the President has extra-constitutional powers in foreign affairs that derive from external State sovereignty.

The court called the President the "sole organ" who represents the government in foreign affairs.

This case is cited as the broadest interpretation of the President's foreign affairs power.

A formal expression without the force of law of congressional opinion that must be approved by both houses of congress and by the President.

An expression of opinion without the force of law that requires the approval of both the House and the Senate, but not the President.

As of now, the Court has not said the President does not have the power to unilaterally withdraw from treaties, so it appears that he can, since it has not said he cannot.

Congress passed the Foreign Relations Authorizations Act which allowed the state department to let citizens from Jerusalem say Israel as their citizenship on passports in violation of the executive's neutral policy towards recognizing Jerusalem as Israel's capitol.

The court said that the President had the exclusive power to recognize other nations stemming from his power to receive ambassadors, make treaties, appoint ambassadors, and conduct foreign relations.

The President has the exclusive power to recognize other nations stemming from his power to receive ambassadors, make treaties, appoint ambassadors, and conduct foreign relations.

This is a category 3 "exclusive power."

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." (Article II Section 2)

War powers are divided between the President and Congress. Congress has the power to declare war, make rules regarding capture, raise armies, and support a navy while.

The President is the Commander in Chief. He conducts the war once it's declared. He can repel sudden invasions and take emergency action to protect the lives/property of U.S. citizens, unless Congress has specifically said no.

He also has some power to "detain enemy combatants" during times of war.

The congress may control the funding of the war, declare war, and wage/end the war. Congress can also withdraw troops within a certain period of time if actions of the President are deemed incorrect.

Congress can also raise and support armies, make rules regarding capture, and maintain a Navy.

1) President can only introduce forces into hostilities, or situations where hostilities are imminent if a) there is declaration of war (by Congress), b) specific statutory authorization to do so (from Congress, pursuant to the WPR) or c) a national emergency created by an attack on the US, its territories or possessions or its armed forces

2) in any situation where forces have been introduced w/o a declaration of war, the President must submit to the Speaker of the House and the Pres Pro Tempore of the Senate a report setting forth a) the reasons why introduction was necessary, b) the constitutional/legislative authority for their introduction, and c) estimated scope and duration of the hostilities or involvement; and must provide other information at the request of Congress

3) within 60 days ... the President shall terminate any use of armed forces related to the report, unless: a) Congress has declared war, or has enacted specific authorization for the use of the armed forces; b) Congress has passed a law extended the 60 day period; or c) Congress is physically unable to meet as a result of an armed attack on the United States

4) after 60 days, in the absence of a declaration of war or use of force authorization, Congress may pass a concurrent resolution ordering the President to remove any and all armed forces

The executive can detain enemy combatants to a certain extent during war times.

- Ruled that a civilian cannot be tried in military courts while civil courts are available.

- Limited the president's power to suspend habeus corpus

- Lawful combatants are subject to capture and detention as POW's by opposing military forces.

- Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees that includes the same procedural protections and opportunities that would be provided in a writ of habeas corpus.

Obama ordered military attacks in Libyan government, and members of Congress claimed he violated the War Powers Act and War Powers Resolution.

However, the Congressmen lacked standing both as lawmakers and taxpayers. The injury is generalized to all Congressmen and all taxpayers and not particularized enough. Instead, Congress should pass something or take action rather than sue.

Obama did not seek Congressional approval for an operation against ISIL in Kuwait. An army captain asserted that he was injured because he could not participate in a war that was not honorable.

However, this injury was too esoteric and not concrete or particularized. Additionally, this was a non-justiciable political question because the judicial branch is not the correct branch of government to resolve the dispute, which would be better left to the political branches of government.

Privilege is an exception to an otherwise legal duty. The President has a qualified privilege to keep conversations between him and advisors confidential, but this presumptive privilege can be overcome by a need for evidence in a pending criminal trial. Additionally, communications involving military, national security, or diplomatic concerns generally are protected.

After the Watergate Scandal when supporters of Nixon were caught breaking into the Democratic headquarters, Nixon had certain conversations regarding covering up the scandal recorded. The Attorney General appointed a special prosecutor, who listed Nixon as a co-conspirator, though he did not indict him. Nixon released some edited transcripts of the tapes but would not give the full transcripts.

The Court held that while the President has a qualified presumptive privilege with regard to communications with his advisors, this privilege is limited, and the need for evidence in a pending criminal trial outweighs the confidentiality of the President's communications, unless the transcripts concern military, diplomatic, or sensitive national security concerns, which was not the case here. Also, here, the communications would be viewed in camera or in the judge's chambers behind closed doors.

Separation of powers concern regarding the Court interfering in an inter-executive dispute does not preclude judicial review of executive privilege since the Court has the power to interpret all of the Constitution and was not asserting any executive function.

Immunity is a complete or partial restriction on exposure to liability. The President has absolute immunity with regard to civil suits against him based on actions taken as President in his official capacity both before and after he leaves office. There are two reasons for this. First, a lawsuit would distract the President from his duties, also called simple nuisance. Second, the fear of a lawsuit would cause the President to do his job in a less efficient way based on the fear of getting sued, also called complex nuisance.