The presidency: powers, roles and limits

Grade 12 Social Studies Worksheet - Challenge Me

Circle the best answer.

1. Read this first

   Use this

   Cards A to E on a President's power to seize property (the excerpts are exact; card D is exact except where marked; card E is made up). Card A, "Youngstown Sheet and Tube Co. v. Sawyer (1952), the majority". Who made it: Justice Hugo Black, for a Supreme Court that voted 6 to 3. When: decided June 2, 1952. For whom: the parties, Congress, the President and other courts. Why: to decide whether President Truman could take over the nation's steel mills on April 8, 1952, with a strike set to begin and the Korean War under way. Excerpt 1: "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Excerpt 2: "When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency." Excerpt 3: "The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." Card B, "Youngstown, Justice Jackson concurring". Who made it: Justice Robert Jackson. When: June 2, 1952. For whom: the parties, Congress, the President and other courts. Why: to explain why he joined the judgment. Excerpt 1: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum," Excerpt 2: "When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Excerpt 3: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Card C, "Youngstown, Chief Justice Vinson dissenting". Who made it: Chief Justice Fred Vinson, joined by Justices Reed and Minton. When: June 2, 1952. For whom: the parties, Congress, the President and other courts. Why: to explain why he would have upheld the order. Excerpt 1: "The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court." Excerpt 2: "The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster." Excerpt 3: "Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon." Card D, "The War Powers Resolution (1973), Section 5(b)". Who made it: Congress, over President Nixon's veto. When: November 7, 1973. For whom: the President and Congress. Why: to limit force used without a declaration of war. Excerpt: "Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States." Card E, "Two made-up cases". Who made it: written for this sheet. Summary in our words, not a quotation: Case 1: A made-up 1949 law lets the President take over any plant whose owner refuses a defense order. In peacetime, a strike halts the mills in Case 1, and the owners have filled every defense order. The President seizes the mills to end the strike. Case 2: A President sends troops into hostilities abroad with no declaration of war and no law authorizing it. The report was due on day 2. On day 75 Congress has passed nothing, and the President has not certified military necessity to Congress.

2. 1.

   In Case 1 on card E, the law reaches only plants whose owners refuse defense orders. Pia applies cards A and B. Which classification is strongest?

   • Outside Jackson's scheme: it covers orders given in wartime, and Case 1 is a strike in peacetime
   • The second kind: the law is silent on strikes, so the Court must uphold the order as an act in the twilight zone
   • Closer to the third kind: Congress chose seizure for refused orders and, as Black reports, rejected it for strikes in 1947
   • The first kind: a seizure law exists, so the President acts with Congress's authorization and holds maximum authority in Case 1
3. 2.

   Card C has Vinson call the majority's view a "messenger-boy concept of the Office". Ren answers Vinson with cards A and B. What is the strongest reply?

   • The order was not just carrying out a law in an emergency; it made law on a matter Congress had considered and declined
   • Article II is silent on seizures, so that silence settles the case without asking what Congress had decided
   • The order prevented no disaster, so the emergency Vinson describes was not a real one and his dissent fails
   • The Constitution gives a President no power in any emergency, so a seizure in a crisis would be invalid under Article II
4. 3.

   A student claims Youngstown shows a President may never act in an emergency without a statute. Tala tests the claim against cards A and B. What is the best verdict?

   • Overstated: Black also allows power from the Constitution itself, and Jackson's second kind covers Congress's silence
   • Supported: Black says the power must come from an act of Congress, so a statute is required before a President acts in a crisis
   • Unsupported: Youngstown decided a steel seizure, so it says nothing about any other emergency act
   • Supported: each of Jackson's three kinds rests on a statute, so no kind lets the President act alone in an emergency
5. 4.

   In Case 2 on card E it is day 75 of a deployment Congress has not authorized. Zee sorts it under Jackson's scheme using cards B and D. Which statement is best supported?

   • The first kind: Section 5(b) permits 60 days of force, so the President still acts at maximum authority on day 75
   • Jackson's scheme does not apply: Section 5(b) is a statute, and his kinds sort presidential acts that lack a statute
   • The second kind: Congress passed nothing about this deployment, so the twilight applies and Section 5(b) is beside the point
   • Section 5(b) states Congress's will that the force end, so the President is at the lowest ebb unless Article II covers it
6. 5.

   A student says Vinson's "six opinions of the majority" show the Court had no clear rule. Bo tests the claim against cards A to C. What is the best verdict?

   • Weakly supported: a 6 to 3 vote is a clear result, so divided reasoning cannot weaken the rule the Court applied
   • Not supported: Vinson dissented, so his description of the majority's opinions has no value as evidence
   • Shown: six opinions mean six separate rules, so the decision gave lower courts and later Presidents nothing to follow
   • Partly supported: six opinions differ in reasons, yet six justices joined the result and two of them center on Congress

7. Use this

   Cards A to E on removing officers and on the President's records (the excerpts are exact; card E is made up). Card A, "The Constitution (1787)". Who made it: the Constitutional Convention. When: September 17, 1787. For whom: the states and the people. Why: to vest the executive power. Excerpt 1 (Article II, Section 1): "The executive Power shall be vested in a President of the United States of America." Excerpt 2 (Article II, Section 3): "he shall take Care that the Laws be faithfully executed" Excerpt 3 (Article II, Section 4): "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Card B, "Humphrey's Executor v. United States (1935)". Who made it: Justice George Sutherland, for a unanimous Supreme Court. When: May 27, 1935. For whom: the parties, Congress, the President and other courts. Why: to decide whether President Roosevelt could remove a Federal Trade Commissioner whom the law protected from removal except for "inefficiency, neglect of duty, or malfeasance in office". Excerpt: "The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime." Card C, "Seila Law LLC v. Consumer Financial Protection Bureau (2020)". Who made it: Chief Justice John Roberts for a Supreme Court that voted 5 to 4; Justice Elena Kagan dissented. When: June 29, 2020. For whom: the parties, Congress, the President and other courts. Why: to decide whether a single director of an agency could be protected from removal except for "inefficiency, neglect, or malfeasance". Excerpt 1 (Roberts): "In short, Humphrey's Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power." Excerpt 2 (Roberts): "The entire 'executive Power' belongs to the President alone." Excerpt 3 (Kagan, dissenting): "The text of the Constitution allows these common for-cause removal limits. Nothing in it speaks of removal." Card D, "United States v. Nixon (1974)". Who made it: Chief Justice Warren Burger, for a unanimous Court of eight; Justice William Rehnquist took no part. When: July 24, 1974. For whom: the parties, other courts and the public. Why: to decide whether a President could refuse a prosecutor's subpoena for tapes of Oval Office talks, to be used at a criminal trial. Excerpt 1: "However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances." Excerpt 2: "A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice." Excerpt 3: "Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide." Excerpt 4: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties." Card E, "Four made-up cases". Who made it: written for this sheet. Summary in our words, not a quotation: Case 1: The Freight Standards Board has five members, no more than three from one party, with staggered seven-year terms, and the President may remove a member only for neglect of duty or malfeasance. It writes safety rules, holds hearings to settle disputes between carriers and, under a new law, sues carriers in federal court for penalties up to $50 million. The President fires a member over a policy disagreement. Case 2: A federal prosecutor in a bribery trial asks a judge to order the President to hand over the tape of one meeting with an aide. The President says all Oval Office talks are privileged and gives no other reason. Case 3: The same trial, but the President says the tape discusses troop movements and a foreign ally's secrets, and offers to let the judge listen to it alone. Case 4: A writer says Presidents rarely face criminal subpoenas, so a ruling like Nixon hardly matters.

8. 6.

   Esme applies cards B and C to Case 1 on card E, a bipartisan board with a new power to sue. Does the limit on removing members stand?

   • Weaker than in Humphrey's: partisan balance fits, but a power to sue for penalties looks executive
   • It stands: Kagan says nothing in the text speaks of removal, so Congress may limit any firing it likes
   • It stands: Humphrey's protects any multimember board with staggered terms, whatever powers the board holds
   • It falls: Roberts says the entire executive power belongs to the President, so no officer may have removal limits
9. 7.

   Cases 2 and 3 on card E differ in what the President claims. Kira applies card D. Which comparison is strongest?

   • Both succeed: Nixon grounds the privilege in each branch's supremacy within its own area of duty
   • Case 2 is stronger: the claim covers any Oval Office talk, and Nixon says the President's need for confidentiality is general
   • Both fail: Nixon holds that no Presidential privilege exists once a criminal trial is under way
   • Case 2 is weaker: a general claim yields to a specific criminal-trial need, while Case 3 raises the secrets Nixon set apart
10. 8.

    A student claims Nixon shows courts may order a President to hand over any document. Luz tests the claim against card D. What is the best verdict?

    • Supported: the Court voted 8 to 0, so a unanimous Court has ended any claim of Presidential confidentiality for good
    • Overstated: Nixon allowed a subpoena for specific trial evidence but kept a qualified privilege for other claims
    • Shown: the Court rejected an absolute, unqualified privilege, so no Presidential privilege survives a subpoena
    • Unsupported: Nixon concerned one trial and one set of tapes, so it carries no lesson for other cases
11. 9.

    Milo combines cards A, B and C. Which claim about who may remove officers do the three cards support best?

    • The text is silent on firing, and Humphrey's and Seila Law draw the line by an agency's functions and structure
    • The text settles it: the vesting and Take Care clauses give the President removal over any officer he appoints
    • Congress decides: with no text on removal, the Court has left each removal limit to the legislature to set
    • Humphrey's survives untouched: Seila Law reaffirms it for independent agencies of any kind
12. 10.

    In Case 4 on card E a writer says Nixon hardly matters, since few Presidents face criminal subpoenas. Noah looks for missing evidence. What would most challenge the writer?

    • How many subpoenas have reached Presidents in court since 1974, compared with those that were threatened
    • How the justices voted in Nixon, since a unanimous vote would show the ruling mattered
    • Whether Presidents and their aides turned over records voluntarily to head off a subpoena fight in court
    • Whether the tapes proved the charges, since a ruling matters when the evidence convicts