Coleman V. Miller - Congress gets to say whether usc has been amended

• What does this imply about 27^th amendment? Is it part of USC or not?

• Question of what constitutes ratification of constitutional amendment (lt. Governor’s tie-breaking vote)  tie vote on SC.

• Question of what is reasonable period of time between proposal and ratification  held this was political question.

• So it is still a live question as to whether 27^th Amendment is part of USC.

• This case suggests that political question doctrine extends to deciding what the Constitution is.

• In Baker, Brennan alluded to Coleman v. Miller

Timing and certiorari

• Timing. Ripeness and mootness.

• Certiorari. SCt’s discretionary control of its docket

• Be aware of the “rule of four.” If four of the nine members of SCt vote to grant certiorari, then it will be granted.

• Justices sometimes dissent, in writing, from the denial of certiorari when they feel strongly that the lower court erred and that SCt ought to intervene.

Executive authority - domestic

• Article II, §1 – Vests “the executive power” in the President of the United States.

• Article III, §3 – Provides that the President “shall take Care that the Laws be faithfully executed.”

• Does above language impose duty on president to execute any law that Congress adopts, or does it grant a power to president to decide how laws will be executed?

Executive-Legislative conflicts

Youngstown Sheet & Tube v. Sawyer - The Steel Seizure Case

• Black 1952. Despite its willingness to infer existence of broad presidential authority, SCt has adhered to one over-arching limitation on presidential power: the President may not make laws; he may only carry them out.

• Facts. During Korean War, President Truman sought to avert a strike in the nation’s steel mills. He therefore issued an executive order directing his Secretary of Commerce to seize the mills and operate them under federal direction. Congressional approval of the seizure order was not requested. The steel companies sought an injunction to prevent the seizure.

• SCt. Struck down seizure. SCt struck down the seizure order, concluding that it was an unconstitutional exercise of the lawmaking authority reserved to Congress. Although the decision was 6-3, four of the six Justices on the majority side wrote separate concurring opinions, making it difficult to summarize the “doctrine” of the case.

• Black’s opinion. This is a legislative and not an executive act, and therefore the president cannot do it. Black flatly stated that the President’s seizure order, coming as it did without the consent of Congress, was a clear usurpation of congressional lawmaking power. The order could not be justified under the “Commander-in-Chief” power; the taking of private property in order to keep labor disputes from stopping production of war material was too far removed from the actual “theater of war” in which the President had the right to set policy. Nor could the seizure be justified under the President’s power to see that the laws are faithfully executed – the very language of the clause shows that the President must merely carry out the laws, not make them.

• Concurring opinions. These opinions attached principal importance to the fact that Congress had previously, and repeatedly, explicitly rejected plant seizure as a means of handling labor disputes.

• Frankfurter. Congress chose, in the Taft-Harley Act, not to give president this power, therefore he does not have it. [why is this not within political question doctrine which Frankfurter invoked in his dissent in Baker v. Carr? (125)

• Jackson (most influential opinion): President’s powers “are not fixed but flucutate, depending on their disjunction or conjunction with those of Congress.” President can exercise power in three situations.

1. where the President acts pursuant to express or implied authorization of Congress, in which case his authority is at a maximum. (he acts for entire federal government, and exercise all of the power that the federal government has).

2. where the President acts in the absence of either a congressional grant or denial of authority, in which case “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” President still has some independent power, the scope of which cannot be defined by abstract theories:

1. Many presidential acts fall into this category.

2. W/in this category, what limits presidential power?

3. Where the President acts in contradiction to the express or implied will of Congress; President acts only if the subject is one that Congress has no authority to act upon. In this case, his power is “at its lowest ebb.” Jackson felt that the steel seizure fell into this third category, and that it could therefore not be constitutionally justified.

1. Inherent presidential power asserted here is dangerous because it is inherently limitless. Allowing such inherent authority improperly amends USC.

2. Why did Jackson approve vast expansion of Congressional powers in Wickard v. Filburn, but not here?

3. Probably because legislative process is so cumbersome. Because legislative action is so hard to obtain, Congress is less dangerous than president.

• Douglas. This order seized property; property cannot be taken without compensation (5^th amendment); only Congress can appropriate money to compensate for taking property; therefore only Congress (and not president) can authorize seizure of this sort.

• Dissent - Vinson. Contended that temporary seizure was justified because of the emergency nature of the situation, and in order to preserve temporarily the status quo until Congress could act.