Also known as:tripartite frameworks · three-part framework · tripartite test
Written by attorneys — see sources below.
A doctrinal structure for assessing the constitutionality of presidential actions in domestic affairs. The structure places actions into one of three categories according to the relationship between the executive measure and congressional will. Category one applies when Congress has authorized the action. Category two applies when Congress has remained silent. Category three applies when the action contravenes congressional will.
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How its tested
Common Examples
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Steel Mill Seizure During Conflict
Tristan Thompson, president of Tundra Resources, received an executive order directing his company to convert all production lines to military vehicles. Congress had enacted a statute limiting such direct commandeering absent specific legislative approval, which had not been granted. Tundra Resources sued to block the order. The court placed the directive in category three of the tripartite framework because it contradicted the statutory limit and therefore operated at the lowest ebb of presidential power.
Passport Notation Dispute
Tyler Taylor, a U.S. citizen born in Jerusalem, requested that his passport list Israel as his place of birth under a congressional statute. The Secretary of State refused, citing exclusive executive authority over recognition. Taylor sued. The court applied the tripartite framework and located the refusal in category three because the statute directly contradicted the executive position, requiring careful scrutiny of any claimed exclusive presidential power.
In 1948, President Truman formally recognized the State of Israel but did not recognize Israeli sovereignty over Jerusalem. Over the subsequent decades, the Executive Branch maintained a consistent policy that the status of Jerusalem should be decided through negotiations rather than unilaterally. The State Department's Foreign Affairs Manual directed that passports for citizens born in Jerusalem list only "Jerusalem" as the place of birth.
In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, including section 214(d), which provided that for a United States citizen born in Jerusalem, the Secretary of State shall, upon request, record the place of birth as Israel on the passport. When signing the Act, President George W. Bush issued a statement asserting that the provision would impermissibly interfere with the President's constitutional authority if construed as mandatory.
Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 to United States citizens. His mother requested that his passport list "Jerusalem, Israel" as the place of birth, but embassy officials followed State Department policy and listed only "Jerusalem." Zivotofsky's parents then brought suit on his behalf in the United States District Court for the District of Columbia to enforce section 214(d).
The district court dismissed the case on political question and standing grounds. The Court of Appeals for the District of Columbia Circuit affirmed the political question determination after initially reversing on standing. The Supreme Court granted certiorari, vacated, and remanded for further proceedings. On remand, the Court of Appeals held the statute unconstitutional. The Supreme Court granted certiorari again.
Tiffany Torres was prosecuted for selling magazines alleged to be obscene. The trial court instructed the jury to apply local community standards when deciding whether the materials lacked serious value. Torres appealed. The reviewing court examined the tripartite Miller test and held that the value prong must be judged by an objective standard rather than community standards, preserving the framework's structure.
Pope v. Illinois481 U.S. 497 (1987)
On July 21, 1983, Rockford, Illinois, police detectives purchased certain magazines from the two petitioners, each of whom was an attendant at an adult bookstore. Petitioners were subsequently charged separately with the offense of obscenity for the sale of these magazines under the then-current version of the Illinois obscenity statute, Ill. Rev. Stat., ch. 38, ¶ 11-20 (1983).
Each petitioner moved to dismiss the charges on the ground that the statute violated the First and Fourteenth Amendments. They argued, among other things, that the statute was unconstitutional in failing to require that the value question be judged solely on an objective basis as opposed to reference to contemporary community standards. Both trial courts rejected this contention and instructed the respective juries to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois. Both petitioners were found guilty.
Both petitioners appealed to the Illinois Appellate Court, Second District. That court also rejected petitioners’ contention that the issue of value must be determined on an objective basis and not by reference to contemporary community standards. The Illinois Supreme Court denied review, and the United States Supreme Court granted certiorari.
The statute under which petitioners were convicted has since been repealed and replaced by a statute that does not call for the application of community standards to the value question.
Tamara Tan, a former federal parolee, brought a class action challenging parole revocation procedures. By the time the case reached the Supreme Court, she had been released and the government argued the case was moot. The Court applied the tripartite framework for justiciability questions and held that the class representative's personal stake could persist even after individual claims expired.
United States Parole Commission v. Geraghty445 U.S. 388, 400 (1980)
In 1973 the United States Parole Board adopted explicit Parole Release Guidelines that established a customary range of confinement by combining a parole prognosis score with an offense severity rating.
On January 25, 1974, respondent John M. Geraghty was convicted in the Northern District of Illinois of conspiracy to commit extortion and making false material declarations to a grand jury and was sentenced to concurrent terms of four years and one year. The Seventh Circuit affirmed the convictions. Geraghty later obtained a reduction of his sentence to 30 months through a Rule 35 motion.
Geraghty applied for parole in January 1976 and again in June 1976. Both applications were denied because his offense behavior was rated very high severity, his salient factor score was 11, and the guidelines indicated a range of 26-36 months. He then instituted this civil suit as a class action in the United States District Court for the District of Columbia, challenging the guidelines as inconsistent with the PCRA and the Constitution, and questioning the procedures by which the guidelines were applied to his case.
The case was transferred to the Middle District of Pennsylvania where Geraghty was incarcerated. The district court denied class certification as neither necessary nor appropriate and granted summary judgment for the defendants on all claims. Geraghty appealed to the Third Circuit individually and on behalf of the proposed class. Another prisoner represented by the same counsel moved to intervene.
On June 30, 1977, before any briefs were filed, Geraghty was mandatorily released after serving 22 months of his sentence. The Parole Commission moved to dismiss the appeals as moot. The Third Circuit held the litigation was not moot, reversed the denial of class certification, and remanded for further proceedings including evaluation of subclasses.
The Supreme Court granted certiorari to resolve the conflict among the courts of appeals on whether a class action challenging parole guidelines becomes moot when the named plaintiff is released from prison while the appeal from denial of class certification is pending.
Thaddeus Tran and other taxpayers sued to enjoin executive-branch conferences funded through general appropriations. They claimed the expenditures violated the Establishment Clause. The Court applied the tripartite framework for taxpayer standing and held that generalized grievances about executive spending did not confer Article III standing absent a specific congressional appropriation.
Hein v. Freedom From Religion Foundation, Inc.551 U.S. 587 (2007)
In 2001, the President issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President. By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments.
No congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers. Rather, they were created entirely within the executive branch by Presidential executive order. Nor has Congress enacted any law specifically appropriating money for these entities’ activities. Instead, their activities are funded through general Executive Branch appropriations.
Respondents are Freedom From Religion Foundation, Inc., a nonstock corporation opposed to government endorsement of religion, and three of its members. Respondents brought suit in the United States District Court for the Western District of Wisconsin against the directors of the White House Office and the agency centers. The complaint alleged that the petitioners violated the Establishment Clause by organizing national and regional conferences at which faith-based organizations were singled out as particularly worthy of federal funding.
The only asserted basis for standing was that the individual respondents are federal taxpayers opposed to the use of congressional taxpayer appropriations to advance and promote religion. The District Court dismissed the claims for lack of standing on November 15, 2004. A divided panel of the Seventh Circuit reversed in 2006, and the Court of Appeals denied rehearing en banc by a vote of seven to four. The Supreme Court granted certiorari in 2006.
Tonya Takahashi was arrested for soliciting contributions on a post office sidewalk. She challenged the regulation as an invalid restriction on speech in a public forum. The Court applied the tripartite framework for forum analysis and classified the sidewalk as a nonpublic forum, upholding the solicitation ban because it was reasonable and viewpoint neutral.
United States v. Kokinda497 U.S. 720 (1990)
Respondents Marsha B. Kokinda and Kevin E. Pearl, volunteers for the National Democratic Policy Committee, set up a table on the sidewalk near the entrance of the Bowie, Maryland Post Office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature addressing a variety of political issues.
The postal sidewalk provides the sole means by which customers of the post office may travel from the parking lot to the post office building and lies entirely on Postal Service property. The District Court for the District of Maryland described the layout of the Bowie post office as a freestanding building with its own sidewalk and parking lot located on a major highway.
During the several hours that respondents were at the post office, postal employees received between 40 and 50 complaints regarding their presence. The Bowie postmaster asked respondents to leave, which they refused to do. Postal inspectors arrested respondents, seizing their table as well as their literature and other belongings.
Respondents were tried before a United States Magistrate in the District of Maryland and convicted of violating 39 CFR § 232.1(h)(1). Respondent Kokinda was fined $50 and sentenced to 10 days' imprisonment. Respondent Pearl was fined $100 and received a 30-day suspended sentence.
Respondents appealed their convictions to the District Court, which affirmed holding that the postal sidewalk was not a public forum and that the Postal Service's ban on solicitation is reasonable. A divided panel of the United States Court of Appeals for the Fourth Circuit reversed. The Supreme Court granted certiorari because the decision below conflicts with other decisions by the Courts of Appeals.
How does the tripartite framework determine the level of judicial scrutiny applied to a presidential action?
The framework assigns the highest level of deference when Congress has authorized the action. It requires balancing when Congress is silent. It demands the most searching review when the action conflicts with congressional will.
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What happens when a presidential directive directly contradicts a statute governing defense production?
The action falls into the third category. Presidential power reaches its lowest ebb. Courts are likely to invalidate the directive because it contravenes the legislative choice of voluntary rather than compulsory mechanisms.
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Can implied congressional support move an executive action out of the third category?
Implied support is insufficient when a statute expressly limits the method the President has chosen. The deliberate legislative decision to exclude seizure authority controls over general claims of acquiescence or national-security necessity.
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576 U.S. 1 (2015)
…188 L. Ed. 2d 910 (2014). II In considering claims of Presidential power this Court refers to Justice Jackson's familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 635-638, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (concurring opinion). The framework divides exercises of Presidential power into…