Separation of Powers Part 3

The President does not have immunity against suits for acts not within his official capacity, either during or before/after his Presidency. The concern that a lawsuit would distract from his duties is valid, but he should be able to be tried for non-official acts.

When a pending lawsuit would distract the President, or other official, from doing his job while he is in office. This is an argument for immunity for any pending suits while the President is in office.

When the President acts in a way that is not in the country's best interests because he is concerned that he could be sued for actions that he takes in his official capacity. This is the justification for absolute immunity for actions taken in the President's official capacity.

Nixon directed Fitzgerald be fired from the Air Force after he testified about planes' cost overruns and technical difficulties. He sued Nixon for firing him after he was no longer President. The Court held that the President was immune from civil suits based on actions he made in his official capacity. There are still checks on the President outside of the civil system such as impeachment, elections, Congressional oversight, etc.

Here, the Court does not want the President to be distracted by fear of possible lawsuit when he does his job. Allowing this sort of immunity allows him to do his job more effectively.

The dissent disagrees, saying that the decision essentially lets the President get away with anything no matter the damage.

When Bill Clinton was governor of Arkansas, he made lewd sexual advances toward Jones. Her superiors punished her for rejecting him, and she sued him after he became President.

The Court held that the President was not immune to the suit here because his actions were not made in his official capacity as President. Additionally, there was no need to delay the lawsuit until after his presidency.

This case involved concerns of simple nuisance because the issue was regarding whether the lawsuit itself would be a distraction to the President while he was in office. It ended up being a huge distraction because he discussed another affair with Monica Lewinsky in his deposition for this trial, which led to his eventual impeachment by the House.

Making him subject to civil suits for unofficial acts would not interfere with separation of powers since the judicial branch is not being asked to perform any executive function.

Congress has the power to legislate while the executive branch enforces the law, but it can delegate certain powers to executive agencies if it provides sufficient instruction or an intelligible principle to the agencies explaining how they should go about enforcing the law.

The Court has not said that Congress failed to provide an intelligible principle since 1935. Congress cannot make laws specific and detailed enough for everything to work, so it delegates certain powers to executive agencies who can better enforce the law in particular areas.

Congress passed the Clean Air Act and delegated to the Environmental Protection Agency to promulgate certain clean air standards. The Court held that the delegation by Congress to the EPA because Congress provided enough of an intelligible principle to the EPA and past cases with similar language have held that the intelligible principle was satisfied.

The legislative veto is a one-house veto by the House to stop an action made by an executive agency to carry out a power that Congress delegated to the agency without approval by the Senate or the President.

The legislative veto is unconstitutional because it violates the presentment and bicameralism requirements of the law-making process in the Constitution. It violates formal notions of separation of powers.

As long as Congress gives an executive agency or entity sufficient instructions or an "intelligible principle" as to how to enforce the law, Congress is allowed to delegate implementation and enforcement of the law.

Chadha, an immigrant's, visa expired, but the immigration judge found that he could stay based on the Immigration and Nationality Act that stopped his deportation if it would impose extreme hardship and the immigrant was of good moral character. The Attorney General recommended that his deportation by suspended along with other immigrants. However, Congress tried to veto this determination using the legislative veto power.

The Court held that this legislative veto power was unconstitutional because it qualified as legislation and did not go through the formal law-making process of being presented to the other house of Congress and approved by the President.

The dissent argues that striking down the legislative veto as unconstitutional invalidates more than 200 statutes and undermines a check by Congress on the executive.

The legislative veto is unconstitutional because the cancellation of the suspended deportation was a judicial act. This was a functionalist argument.

A law must be presented to the President and approved (unless Congress overrides a veto) before it becomes law.

The law-making process must go through both Houses of Congress before a bill can become a law.

The line-item veto allows the President to cancel certain provisions of a bill but approve the rest. This was held as unconstitutional because the President only has the power to approve or reject a law, but he cannot make changes. It was struck down as a formal violation of separation of powers.

Congress passed the Line Item Veto Act which allowed the President to "cancel" specific types of spending provisions of large appropriations bills without vetoing the entire bill. Clinton cancelled three spending provisions pursuant to the Act. The Court held that the line-item veto was unconstitutional, in a classic formalism analysis, because the process of law-making involves presenting the bill to the President to sign or veto in full, unless Congress overrides the veto, and he cannot simply change the law because that is not the correct process.

"[President] shall have power [to] nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Art. II Sec. 2)

The President has the power to appoint all principal officers, who are generally high enough officials that report directly to the President, with the advice and consent of the Senate.

Congress can never appoint principal officers on its own.

For inferior officers, or all officers that are not principal, they may be appointed by other entities such as department heads, courts, or the President.