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C O U R S E 
Key Constitutional Concepts and Supreme Court Cases
Professor Kermit Roosevelt, III, University of Pennsylvania
C O U R S E   L E C T U R E 
Article II: The Executive Branch
Notes taken on November 12, 2014 by Edward Tanguay
Article II
creates the executive branch
while Article I spells out what kind of laws Congress can make, Article II doesn't do this for the president
it gives the president different roles and powers
enforce the laws
like a sheriff
with the help of
executive officers
members of cabinet
federal prosecutors
most of the government's workers
president can control people under his command generally as he wants
hire and fire
tell them what to do
for some high level positions, he can't hire without senate approval
appoints federal judges
conducts foreign affairs
can make treaties with senate approval
can enter into agreements on his own
commander and chief of armed forces
can't declare war
this power is reserved to congress
but if there is a war, he conducts it
looking at this list of powers, the president is in a way secondary to congress
Article II comes after Article I
congress makes laws, the president enforces them
congress declares a war, the president commands it
but power has shifted away from congress and towards the president
the basic reason is that congress has its own separation of powers
two houses, 100 senators, hundreds of representatives
rules like the filibuster which make it hard for even a majority to get much done
the power of the executive branch, in contrast, is concentrated in one person
can act quickly and decisively
particularly in times of war
during the Civil War, Lincoln did things that might not have been constitutional
seized ships bound for Confederate ports
Supreme Court eventually said that was not a violation of the Constitution
suspended the writ of habeas corpus during Civil War
this meant he could arrest people on his own and not have to explain why to a court
tried to prosecute civilians in military commissions rather than Federal courts
the Supreme Court ruled he couldn't do this
announced he was freeing the slaves in Confederate States
the Emancipation Proclamation is an unusual expansion of presidential power
quite possibly not consistent with the Constitution
in defense of these actions, Lincoln made the argument, "it was necessary"
Franklin Roosevelt
to fight Great Depression, he expanded the Federal government with The New Deal
with the support of congress but over the opposition of the Supreme Court
Court finally backed down
to fight WWII
prosecuted Nazi saboteurs in a military commission
told Supreme Court he would defy an order to send them to Federal Court instead
evacuated Japanese-Americans from Pacific Coast and detained them in camps
elected four times
Harry S Truman
gets FDR presidency handed to him
sends troops into Korea without congressional authorization
argument was that it was a "United Nations police action" not an American war
in order to provide steel to those troops, he seized steel mills to prevent strikes
steel companies sued him, creating the Youngstown case
we want the president to be able to save the nation when there is a crisis, but not be able to claim there is a crisis when none exists, or exaggerate one and use it as an excuse to take more power
Justice Robert Jackson, three categories of presidential power
1. congress approves of his actions
his authority is at its maximum
2. congress says nothing about this actions
president can only rely on his own independent powers, or Congress and president can have concurrent authority
3. congress disapproves of his actions
president's power is at its lowest ebb
in the Youngstown case, congress was opposed, court ordered him to hand the mills back, and he obeyed
the party system complicates this
since a Congress of the same part as the president is likely to support him whether or not his actions are Constitutional or not
the Supreme Court has never ruled that the president is allowed to break the law in order to save the nation