Shared Positions And Separation Of Term Paper

Length: 7 pages Sources: 10 Subject: Government Type: Term Paper Paper: #32893780 Related Topics: Federalist, Mars, United States Constitution, Courts
Excerpt from Term Paper :

These words, 'necessary and proper,' in such an instrument, are probably to be considered as synonymous. Necessarily, powers must here intend such powers as are suitable and fitted to the object; such as are best and most useful in relation to the end proposed. If this be not so, and if congress could use no means but such as were absolutely indispensable to the existence of a granted power, the government would hardly exist; at least, it would be wholly inadequate to the purposes of its formation. 17 U.S. 316, 324-325.

Furthermore, the Court firmly established the supremacy of the Federal government, by determining that state action could not impede the Federal government's valid exercise of power. The Court determined that:

The constitution, therefore, declares, that the constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall control all state legislation and state constitutions, which may be incompatible therewith; and it confides to this court the ultimate power of deciding all questions arising under the constitution and laws of the United States. The laws of the United States, then, made in pursuance of the constitution, are to be the supreme law of the land, anything in the laws of any state to the contrary notwithstanding. 17 U.S. 316, 326-327.

Even recently, the Court has been willing to recognize the breadth of the Executive branch's powers. In Dames & Moore v. Regan, 453 U.S. 654 (1981), the Court determined once Congress has delegated power to the Executive branch, the Executive has broad authority to act under that scope. Furthermore, the Court approved the suspension of claims filed in U.S. Courts, despite the fact that there was no statute authorizing such a suspension. As a result, the Court basically stated that the President's authority could be virtually unlimited, given the appropriate circumstances and a grant of Congressional authorization. There is a presumption that the President is acting pursuant to Congress' consent. Furthermore, the President has the power to enter into executive agreements with or without Congressional authorization.

However, there are concerns that the failure by the Supreme Court or Congress to interfere with the Executive's actions in the current war may be resulting in the abrogation of constitutional protections. There are concerns that the Bush Administration's action in denying civilians access to civilian courts and forcing them to make their claims in military tribunals has expanded the President's power in an unconstitutional manner....

...

(ACSBlog). However, the fact is that the Supreme Court has taken steps to end the administration's unilateral abrogation of constitutional protections. In a case about Guantanamo detainees, the entire Supreme Court:

rejected Bush's claim that Congress and the courts could play no role in reviewing the legality of Guantanamo detentions. In the Hamdi case, Sandra Day O'Connor wrote for the majority that "whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." And in August 2006, a federal court declared the NSA spying program unconstitutional, rejecting the president's assertion of uncheckable authority with the stern warning that "there are no hereditary Kings in America." (Cole).

In addition, the Court differentiates between a President acting in his official capacity, and acts by a President outside of his official capacity. In Clinton v. Jones, 520 U.S. 681 (1997), the Court determined that even an acting President did not have immunity from liability for non-official acts done before attaining his role as President. On the contrary, it determined that a President would generally not be immune to private actions against a President under the separation of powers doctrine. The doctrine was established to safeguard against encroachment by one branch onto another, not to place any member of the Executive or Legislative branch beyond the scope of the law during the course of their time in office.

Works Cited

ACSBlog. "Issue Brief: 'A Call to Protect Civilian Justice: Beware the Creep of Military

Tribunals." Separation of Powers. 2008. ACSBlog. 19 Mar. 2008 http://www.acsblog.org/cat-separation-of-powers.html.

Clinton v. Jones, 520 U.S. 681 (1997).

Cole, David. "The Constitution." Harper's Magazine. 2007. The Harper's Magazine

Foundation. 19 Mar. 2008 http://www.harpers.org/archive/2007/06/0081546.

Dames & Moore v. Regan, 453 U.S. 654 (1981).

Madison, James. "Federalist No. 48." The Federalist Papers Online. 1778. Interesting.com. 19

Mar. 2008 http://www.foundingfathers.info/federalistpapers/fedindex.htm.

Marbury v. Madison, 5 U.S. 137 (1803).

McCulloch v. Maryland, 17 U.S. 316 (1819).

Murphy, Walter, James Fleming, Sotirios Barber, and Stephen Macedo. "The Pentagon Papers

Case." American Constitutional Interpretation. 2005. Princeton University. 18 Mar. 2008 http://www.princeton.edu/aci/cases-pdf/aci2.pentagon.pdf.

U.S. Courts. "Separation of Powers." U.S. Courts. 2008. U.S. Courts. 19 Mar. 2008 http://www.uscourts.gov/outreach/resources/separationofpowers.html.

18 U.S.C.S. 201.

Sources Used in Documents:

Works Cited

ACSBlog. "Issue Brief: 'A Call to Protect Civilian Justice: Beware the Creep of Military

Tribunals." Separation of Powers. 2008. ACSBlog. 19 Mar. 2008 http://www.acsblog.org/cat-separation-of-powers.html.

Clinton v. Jones, 520 U.S. 681 (1997).

Cole, David. "The Constitution." Harper's Magazine. 2007. The Harper's Magazine
Foundation. 19 Mar. 2008 http://www.harpers.org/archive/2007/06/0081546.
Mar. 2008 http://www.foundingfathers.info/federalistpapers/fedindex.htm.
Case." American Constitutional Interpretation. 2005. Princeton University. 18 Mar. 2008 http://www.princeton.edu/aci/cases-pdf/aci2.pentagon.pdf.
U.S. Courts. "Separation of Powers." U.S. Courts. 2008. U.S. Courts. 19 Mar. 2008 http://www.uscourts.gov/outreach/resources/separationofpowers.html.


Cite this Document:

"Shared Positions And Separation Of" (2008, March 19) Retrieved December 1, 2021, from
https://www.paperdue.com/essay/shared-positions-and-separation-of-31359

"Shared Positions And Separation Of" 19 March 2008. Web.1 December. 2021. <
https://www.paperdue.com/essay/shared-positions-and-separation-of-31359>

"Shared Positions And Separation Of", 19 March 2008, Accessed.1 December. 2021,
https://www.paperdue.com/essay/shared-positions-and-separation-of-31359

Related Documents
Separation of Powers the Associated
Words: 563 Length: 2 Pages Topic: Criminal Justice Paper #: 39799633

"They were informed by the committee that they could assert a claim of 'executive privilege' as a justification for not answering questions and not providing the documents, but they had to do that by appearing and making that claim in front of the committee. They were not simply free to ignore a lawful subpoena to appear. In short, nobody was above the law." (Weiner). However, even though they were

Family Law Amendment Shared Parental Responsibility Act
Words: 2855 Length: 10 Pages Topic: Children Paper #: 90942309

Family Law Amendment (Shared Parental Responsibility) Act U v U [2002] HCA Over the years, the moral fibre of the society has continued to crumble. One of the most affected social units in the society is the family. Spouses exchange vows only to go back on their promise that 'till death do us part.' Children are often at the receiving end of such scenarios since family disintegration often has a negative impact

Religion in Schools
Words: 3180 Length: 10 Pages Topic: Mythology - Religion Paper #: 89429251

Separation of Church and State: A Moral Dilemma Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment to the U.S. Constitution The First Amendment of the Constitution of the United States guarantees the right to

Business Organization Coursework: Mary and Joseph, Stakeholders
Words: 2596 Length: 8 Pages Topic: Business Paper #: 55895148

Business Organization Coursework: Mary and Joseph, stakeholders in Kings plc, are concerned about the company's management practices by its current directors. One of these recent practices includes the desire by these directors of Kings plc, which owned a hotel, to acquire two additional hotels. As a result, these directors created a subsidiary company for the sole purpose of acquiring the two hotels. In this new development, Kings plc could only acquire

Plato, Mencius, and Hsun Tzu
Words: 2092 Length: 7 Pages Topic: Black Studies - Philosophy Paper #: 3781012

This is very true because even in modern times students who desire to attain good grades will endeavor for that, but a student who has no desire will only go to school to pass time. This analogy can also be vice versa, a petty man can become a gentleman and a gentleman can also become a petty man Austin, Page 106. The main reason they do not change places is

Distance Relationships Are Leading to Increased Divorce
Words: 1251 Length: 4 Pages Topic: Family and Marriage Paper #: 71118490

distance relationships are leading to increased divorce statistics. In the past, when a person married, it was a lifelong commitment. This was partly because the laws regarding divorce were very strict and it was nearly impossible to get a divorce without some very strong cause. Women in particular had difficulty filing for divorce from their husbands, even if he were an adulterer or perhaps physically abusive. This has all changed