For the first question on my ConLaw exam, I situated the issue in 1960. Fifteen years after peace is declared in Europe, the “Nazi State” emerges to reunify Germany. President Eisenhower orders air strikes on the Reichstag based on the 1941 Declaration of War against Germany. This is a direct parallel to the question of whether President Obama can rely on the 2001 and 2002 AUMFs against Al Qaeda and Germany to go after the Islamic State. There is also a Take Care clause question of whether the President can refuse to issue any visas to German immigrants. There’s also a recess appointment issue, as the President attempts to install Adlai Stevenson as Secretary of State during a 2-hour lunch break in the Senate. Then the House votes to impeach, and the Senate schedules an impeachment trial. The students are to prepare a memo for the Attorney General, who will defend the President during the impeachment trial. This question asks the students to consider how the Constitution is interpreted by Congress, and not the Courts. Therefore, there are no issues of justiciability.

Instructions: The year is 1960. In the waning days of the Eisenhower presidency, fifteen years after the conclusion of World War II in Europe, hostilities re-emerge in Germany. President Eisenhower takes a series of executive actions to counter to these threats. In response, the House of Representatives approves four articles of impeachment, and a trial will be held in the Senate. You are an advisor to the United States Attorney General, who will be defending the President during the impeachment trial. He has asked you to prepare a memo of no more than 1,000 words addressing five issues present in this trial.

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The year is 1960. Fifteen years earlier in 1945, victory in World War II was declared in Europe. At the conclusion of the war, Germany’s government–the National Socialist German Workers’ Party, commonly known as the Nazis–was removed from power. Adolf Hitler, the government’s Chancellor, was dead. The United States and the Soviet Union divided Germany into two separate countries: a democratic West Germany, and a communist East Germany. The city of Berlin, the former capital of Germany, was divided in the middle by the Berlin Wall–half of the city was in West Germany, and the other half in East Germany. New governments were formed in each nation.

But not everyone accepted the cessation of hostilities. Followers of Adolf Hitler’s legacy plotted to reunify the Fatherland as a new nation called “The Nazi State.” On May 9, 1960–the 15th anniversary of Victory in Europe–a group of Nazi militants conquered Berlin, reunifying the City, and the Country. The Nazi State raised a new flag over the Reichstag, the site of the German government, and assumed control of the nation. The Nazi State, unlike Hitler’s Nazis, did not seek world domination, and had no aggression towards the United States. They simply wanted to reunify Germany under a single rule.

That same day, the Secretary of Defense informs President Eisenhower about the coup in Germany. Eisenhower, who during World War II served as the Supreme Allied Commander and vanquished the Nazis, was very concerned. Eisenhower learns that the Nazi State was advancing towards a small Jewish village on top of a mountain, where they planned to murder all of the residents.

Twenty minutes later, Eisenhower issued Executive Order #1, titled, “Actions Against the Government of Germany.” He instructed the United States Air Force to attack the German Government, drop bombs throughout Berlin, including on the Reichstag government building, and to destroy the forces advancing on the Jewish village. No ground troops were authorized to engage the Nazi State. The bombings commenced immediately.

President Eisenhower justified his decision to attack the Nazi State based on the Declaration of War signed by President Franklin D. Roosevelt on December 11, 1941 against the Government of Germany. It provides:

JOINT RESOLUTION Declaring That a State of War Exists Between The Government of Germany and the Government and the People of the United States and Making Provisions To Prosecute The Same

Whereas the Government of Germany has formally declared war against the Government and the people of the United States of America:

Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared;

and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany;

and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.

Approved December 11, 1941 3:05 PM E.S.T.

(Signed) Franklin D. Roosevelt

President Eisenhower transmits immediately a message to both houses of Congress informing them of Executive Order #1. The next day on May 10, 1960, the Democratic-controlled House of Representatives passes a resolution declaring that Executive Order #1 was unconstitutional, as the President did not have the authority to wage war on the Nazi State. The Republican-controlled Senate announces that no votes will be taken on this matter. (Eisenhower is a Republican).

On May 11, 1960, the President issues Executive Order #2, titled “Creation of Spy Program to Infiltrate the Nazi State.” In order to infiltrate the Nazi State, the United States will send spies to join the government in Germany, and report on secret programs. To ensure that the spies look authentic, and blend in, all members of the program had to be white males, with blond hair and blue eyes. The President noted in the Order that any agents sent to the Nazi State that did not fit this description would be outed, and tortured and killed.

On May 12, 1960, the President issues Executive Order #3, titled “Halting Immigration from the Nazi State.” In 1955, Congress passed an immigration law that capped at 100,000 the number of visas available annually to immigrants from West and East Germany. Through Executive Order #3, the President determined that even though Congress gave him the discretion to issue up to 100,000 visas, and appropriated the money to fund those visa, he would issue zero visas. He insisted that the United States should not admit any immigrants from the Nazi State—even Jewish refugees seeking asylum from the Nazi State.

Later that day, both Houses of Congress passed resolutions, declaring that Executive Order #3 was unconstitutional, as the President failed to take care that the laws were faithfully executed. The President disregards the resolutions.

At 9:00 a.m. of May 13, 1960, in protest of Executive Order #3, the Secretary of State resigns. He insists the order is unconstitutional, and refuses to enforce it. At 10:00 a.m., the President officially nominates Adlai Stevenson as the new Secretary of State. The Senate Majority leader informs the President that he will not bring the nominee for a vote until Executive Order #3 is revoked. At noon, all of the Senators go on their usual one-hour lunch break (two hours if two martinis are involved). During that break, the President announces that he has appointed Stevenson using his recess-appointment power, citing the urgency of national security, and the fact that the Senate refused to hold a vote.

Enraged, on May 20, 1960, the House of Representatives approves four articles of impeachment against President Eisenhower:

1. In his conduct while President of the United States through Executive Order #1, Dwight D. Eisenhower, has willfully waged war on the Nazi State without a Congressional declaration of war.

2. In his conduct while President of the United States through Executive Order #2, Dwight D. Eisenhower, has willfully denied equal protection of the law, and discriminated on the basis of race and gender by limiting membership in the Spy Program to white males.

3. In his conduct while President of the United States through Executive Order #3, Dwight D. Eisenhower, has violated his duty to “take care that the law be faithfully executed” by not issuing any visas to German immigrants.

4. In his conduct while President of the United States through the alleged “recess appointment” of Stevenson as Secretary of State, Dwight D. Eisenhower willfully disregarded the Constitution’s requirement that the Senate shall provide “Advice and Consent” for “Officers of the United States.”

Wherefore, Dwight D. Eisenhower, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States.

The Senate schedules the impeachment trial, to be presided over by Chief Justice Earl Warren, for June 1, 1960.

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You are an advisor to the United States Attorney General, who will be defending President Eisenhower during the impeachment trial. The Attorney General asks you to draft a memorandum of no more than 1,000 words, citing all relevant Supreme Court decisions, addressing the following five issues:

1. What is the President’s strongest defense to the first article of impeachment concerning Executive Order #1, charging him with waging war on the Nazi State without a Congressional declaration of war? Pay special attention to the 1941 Declaration of War against the “Government of Germany.”
2. What is the President’s strongest defense to the second article of impeachment concerning Executive Order #2, charging him with denying the equal protection of the laws by limiting the spy program to white males?
3. What is the President’s strongest defense to the third article of impeachment concerning Executive Order #3, charging him with failing to execute the law by refusing to issue any visas to German immigrants?
4. What is the President’s strongest defense that his recess appointment of Stevenson as Secretary of State was constitutional, and did not violate Art. II, Sec. 2?
5. The Attorney General is preparing his closing argument for the impeachment trial. He asks you to discuss, from a policy perspective, the role that discretion plays in the President’s duties. Specifically, address how a President’s obligations for protecting national security are affected when Congress refuses to vote on his agenda.

Please remember that you are offering arguments for an impeachment trial, and not a court proceeding, so concerns about standing or the role of the courts are irrelevant. What matters here–as always–is how the Congress and the President interpret the Constitution.