Executive Branch

Selection of President & Powers of Executive

Unit 3 – Sept. 28

 President Selected by Electoral College:

o President most win 270 electoral votes to win

 No EC Majority  President chosen by House of Representatives

o Only the top three electoral vote getters are contenders for the House of
Representatives
o Have to win 26 states to be elected by the House of Representatives
o Thought the House of Representatives would elect the president more often
than they do now
o This situation has only happened twice and the last time was in the 1820’s

 Selection of the President

o 1824 Election – Popular Vote
o John Quincy Adams
o Andrew Jackson
o William Crawford
o Henry Clay
o No majority in the electoral vote
o Henry Clay is eliminated because he was not in the top three for electoral votes
o John Quincy Adams elected president
o Election seen as corrupt
o Andrew Jackson is still the one that recreates politics

 Selection of President – 2000

o Defined blue and red states that we know today
o We have it backwards compared to most countries
o Blue is conservative
o Red is liberal
o Republican (G. W. Bush)
o Democratic (Gore)
o Before this election red was challenging party and blue was defending
party
o G. W. Bush won 271 electoral votes

 Bush v. Gore opinion:

o Can only hold an election where everywhere weight in the state is the
same
o Cannot say we are going to give the electoral votes to the biggest county
  Recent Changes: NE, ME split electoral college votes; movement by GOP in some states
(esp. Pennsylvania) to change to split Electoral Votes

 Amendments changing Presidential Selection:

 12th (1804): President and Vice President elected separately

 20th (1933): Reduces “Lame Duck” period; president is inaugurated earlier
 22nd (1951): Two-Term Limit; every president would voluntarily retire after two term;
Roosovelt elected four terms only president to do so
 23rd (1961): DC given electoral college vote
 25th (1967): Clarifies Presidential Succession; figures out who becomes president if vp
and president are killed

Powers of Executive
 Enumerated Power: (Art. 2 & 2)
 Commander in Chief of Army and Navy
 Commison Officers
 Pardon Power
 Make Treaties, with 2/3 vote of Senate
 Nominate ambassadors, ministers, & officers
 Including recess appointments
 Receive ambassadors & ministers
 State of the Union Speech & recommend legislation
 Veto Power
 Implied powers:
o The executive power shall be vested in the president

Veto Power
 Every bill which passes the House of Representatives and the Senate must be presented to
the President and he can sign it or not sign it
 If he does not sign it is returned to be looked at again
 2/3 of house has to pass the bill, and if approved by 2/3 of other house it becomes a law

Pocket Veto
 if the president ignores the bill then it acts as him signing it so it becomes law

Line Item Veto: (1996 Act) – Overturned by SCOTUS

 the veto power is limited to what is in the constitution

 Did an exercise about president and the ones we thought were good and the ones we
thought were bad
 All about who followed and how good they are
 Judged on who came before and after you
 Read Chapter 2 and 6 for next class
Jackson and FDR – reconstructive presidents
 Electoral day upheld
 Strong national government (executive)
 Parking Court
 Reshape climate and party system

Pierce and Carter – disjunctive presidents

 Party is losing power/weak
 Unexpected/ “dark horse”
 Outsider is their own party
 Technocrat

Polk and JFK – articulating presidents

 Both democrats
 Democrats system within democrat’s regime
 Within the tradition of their predecessors
 Stable politics
 Managing conditions

1937 FDR – democrat; recon; great

1945 Truman – democrat; art; very good

1961 JFK – democrat; art; very good

1963 LBJ – democrat; art; good

1977 Carter – democrat; disjunction; poor

October 17, 2017 Lochner

Year 1905

Era Laissez-Faire

Law Limit Bakers’ Hours

Level of Gov State - NY

Constitutional Provision 14th Amend. – DPC Freedom of Contract

Outcome Law Overturned

Vote 5-4

“Ideology” Conservative
Judicial Philosophy Activism

Argument Evidence Not Written “police power”

Dissent JM Harden; OW Holmes – Legal Realism

Wickard

Year 1942

Era Liberal - FDR

Law Agricultural Adjust Act – Crop Quota

Level of Government Federal

Constitutional Provision Commerce

Outcome Law Upheld

Vote 9-0

“Ideology” Liberal

Judicial Philosophy Restraint

Argument Affects commerce in some way

Dissent Deference to Congress

Roe

Year 1973

Era Liberal - Warren

Law Anti-Abortion

Level of Gov State - Texas

Constitutional Provision 1st, 4th, 5th, 9th, 14th Vagueness

Outcome Law Overturned

Vote 7-2
“Ideology” Liberal

Judicial Philosophy Activism

Argument Fundamental Right vs. CSI

Dissent Rehugasi

Roe vs. Wade

1st free speech

“Fundamental Rights”
Implicit to the concept of ordeal thoughts vs. Compelling State Interest
Protection of home life

NFIB

Year 2012

Era Conservative - Roberts

Law Affordable Care Act

Level of Gov

Constitutional Provision 1st, 4th, 5th, 9th, 14th Vagueness

Outcome Law Overturned

Vote 7-2

“Ideology” Liberal

Judicial Philosophy Activism

Argument Fundamental Right vs. CSI

Dissent Rehugasi

Scalia vs. Breyer

Conservative Liberal
Judicial Restraint Judicial Activism
Formalism Realism
Textualism Functionalist
Originalism Living Condition

Sculia
 Common Law vs. Statutory Interpretation

How to interpret Statues

Good Bad
-text - Liberalism/State Constitution
-obicition meaning -Intent or legislative
-original meaning -legislative history
- statements of legislatives
-potential tyrannical
- allows judges to enact their ideas

Breyer “Active Liberty”

-consequences
-purpose
-contemplation
-conditions
-empirical data
-precedents
-legislative intent
-history
-text
-everything!!

OBAMACARE CASE

Issues:

Individual Mandate – commerce clause; taxation clause;

Medicaid Expansion- control is through the state; funded by federal government; spending
clause

Opinions Commerce Clause Taxation Clause Spending Clause

Roberts (Majority) Distinguish from agree Not agree - 7
Wickard; limit what
congress can do
Ginsbury Agree - 4 Agree – 5 agree
Brueger agree agree Not agree
 Conservative Dissent Not agree Not agree Not agree
(Scalia)
Thomas

Executive branch
Selection of President and Powers of Executive
 Search: how the electoral college works and take notes
 Selection of President in 2000 was where we got red and blue states
 Bush v. Gore: because of the debacle NE and ME split their electoral votes
Amendments
 12th: Pres and vice elected separately
 20th: Reduce lame duck period
 22th: two term limit
 More in slides
Powers of the Executive
 Enumerated powers
o Commander in Chief or Army & Navy
o Pardon power
o Make treaties, need ⅔ vote of Senate
o Nominate ambassadors and ministers
o Veto power
 The president can return a bill for reconsideration
 Pocket veto: a president just doesn’t do anything for 10 days so it dies

Skwroach - 6 Presidents
 Jackson FDR )
 Polk All mid 19th century JFK All mid 20th century ) - political time
 Pierce Carter )
Secular time
 Jackson and FDR (reconstructive presidents) - elected during upheaval, strong
executive(includes military), packing courts, reshape climate and party system
 Pierce and Carter - (disjunctive president's) party is losing power/weak, “Dark Horse”,
outsiders in their own party, technocrat
 Polk and JFK (articulating presidents) - Democrats squarely within Democratic regime,
within the tradition of their predecessors, stable politics, manage coalitions, small
progress on existing ideologies,

Marbury vs Madison (1803)

 Marshall opinion: 3 questions
1. Does Marbury have right to commission? Yes
2. Should Marbury have a remedy/solution? Yes
3. Is Marbury seeking the right remedy?
 Is Marbury entitled to writ?
 Should the court issue writ?
  Is there a conflict with the Judiciary Act of 1789? Yes congress can change an
appellate jurisdiction, but this was only heard at the supreme court level so its
original and it cannot be changed.

Scotus Care Themes

 Philosophies
o “Liberal” / “Conservative”
o Judicial Activism - linked with liberalism
o Judicial Restraint - linked with conservatives
 Clauses
o Commerce clauses
o Due Process Clause, 14th Amendment
o Equal Protection Clause
 Eras
o Early 20th century: “Laissez faire” court (Conservative)
o Mid 20th century: FDR Court (Liberal)
o Late 20th century: Rehnquist court

Key: year/era, law, level of conflict, constitutional provision, outcome vote, Ideology, Judicial
Philosophy, Argument, dissent
Lochner
 1905, Limit baker hours, state level-NY, 14th amendment freedom of contract, lochner 5-
4, conservative, activism, evidence not within population??, John Marshall Herndon
Wickard
 1942, Liberal - FDR, AAA - crop growth, federal, commerce, law upheld, 9-0, liberal,
restraint, affects commerce in some way, N/A
Roe
 1973, Liberal - Warren, Antibiotic, State - Texas, 1st-4th-5th-9th-14th vagueness, Law
overturned, 7-2, liberal, activism, fundamental right of CSI, rehquest
 Roe v. Wade - 1st: free speech 4th: Unreasonable search and seizure 5th: double jeopardy
9th: there are rights that aren’t explicitly listed 15th: everyone can vote
 “fundamental rights” vs. Compelling state
Implicit to the concept Intest?
of ordered loyalty Protection of human life
NFIB
 2012, conservative -Roberts, Affordable Care Act,
Scalia (Conservative) vs. Breyer (Liberal)
 Scalia Breyer
o Judicial restraint Judicial Activism
 Formalism, textualism, originalism realism, functionalist
 “Living Constitution”

Common Law vs. statutory integration

Good Bad
 Text Literalism/ strict construction
o Objective meaning intent of legislature
 oOriginal meaning Legislative history- all judges to exact idealism
oPlan meaning/reasonable meaning
 Breyer: Active Liberty
o Purpose
o Consequences
o Contemporary conditions
o Empirical data
o Previous court cases
o Legislative intent (history)
o Text
o Everything
Obamacare Case - Medicare is for older people - medicaid is gov subsidized aid for poor