Chapter 2 1 The Delegation/Nondelegation Doctrine

04

What is the Delegation Doctrine Problem? Can Congress delegate legislative or judicial power to an executive branch agency?
The Constitution is silent on this issue.
The United States Supreme Court found some New Deal legislation unconstitutional because it delegated too much power to agencies. 4

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5 Shifting the Question Did Congress sufficiently direct the agency in the law delegating the power so as to limit the agency’s actions to those that would not violate separation of powers?
The judicial review question:
Does the statute provide enough guidance for the court to review the agency actions to assure that they comply with Congressional intent?
The "intelligible principle" test.
This is all you need to know about the history

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6 "Intelligible Principle" - Rulemaking If the legislature does not provide an "intelligible principle" to guide the court in reviewing agency action, the courts will not allow the agency to make the rule, but will not hold the law unconstitutional.
As we will see latter, this shifts the question to whether the court or the agency determine the construction of the statute.
Chevron and the related deference cases.

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7 What is an Intelligible Principle? Specific guidance is best
Congress will provide very specific guidance if it wants to limit agency discretion - the ADA
General/ambiguous guidance is also usually OK
‘‘in the public interest"
Depends on whether context can provide meaning
We will explore this in the Chevron and FDA cigarette cases

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8 Delegation Doctrine - Adjudications Is the administrative law judge (ALJ) acting as an Article III judge?
Old test was public versus private rights.
We will look at this question in Louisiana in the Wooly case, which deals with whether ALJs are acting as LA Article V judges.

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Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986) [1] “the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and
[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,
[3] the origins and importance of the right to be adjudicated, and
[4] the concerns that drove Congress to depart from the requirements of Article III. 9

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Judicial Review as a Check on Delegated Powers There is a right of judicial review of rules to determine if the agency has the legal authority to issue them and if they properly supported by the record.
There is a constitutional right to due process protections in adjudications, and usually a right to judicial review of the decision.
As we will see, Congress can limit judicial review in some circumstances. 10

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11 Practical Considerations The court is very unwilling to find adjudications exceed constitutional authority under this test.
This may be because Congress has not passed laws which test the outer limits of agency authority
There are state law fights over this - Wooley

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Administrative Management of Criminal Cases There are limits on the transformation of criminal matters into agency adjudications
Traffic court can be civil, but only if there is no jail time
Large civil fines push the edge, especially if there are also criminal penalties for the same act 12

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Administrative (Civil) Detentions Administrative detentions are OK, but not for punishment.
Commendable diseases
Denial of bail
Mental health commitments
Guantanamo Bay detentions are administrative 13

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Congressional Control of Agencies 14

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Learning Objectives – Limits on Congressional Control of Agencies How do we determine if Congress can directly control an agency?
How is Congressional oversight different from an unconstitutional control of an executive branch agency?
How can officers of the United States be removed?
What is the limitation on the removal of judges? 15

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16 INS v. Chadha, 462 U.S. 919 (1983) This is an important case about the relationship between Congress and agencies
What is the legislative veto as used in this case?
Why was it efficient from the point of view of congress?
The legislative veto was very common at the time Chadha was decided

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17 Adjudication Issues While we will talk about adjudications in the next chapter, this is also an adjudication case.

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18 Are there Limits on Congressional Power over Aliens? Congress' Art. I power "To establish an uniform Rule of Naturalization," combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens.
Aliens in the US, even illegals, get constitutional protections such as criminal due process
They get only limited constitutional rights on detention and deportation
They have no right to stay, only a right to a hearing to make sure the agency has the right person and facts.

19

The Immigration Question What are the political questions over immigration?
How have these changed over time?
What are the debates right now?
Why does immigration divide both conservatives and liberals? 19

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20 Background on Deportation INS was once part of DOJ, now it is part of Homeland Security
What is the significance of the shift?
Why is Congress ambivalent about deportation?
Why do you think Congress gave the DOJ the right to decide whether aliens should be allowed to stay in the U.S.?
Why did they want to retain a say in deportation proceedings?

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21 § 244 - What the Alien has to prove to stay deportation “...has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application,
...that during all of such period he was and is a person of good moral character;
...is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.“
Are these black and white factual determinations?

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22 Chadha’s Situation Did Chadha enter the country legally?
How did he become deportable?
Does the statute give the agency the discretion to stay his deportation?
What did the ALJ find?
Did the agency agree?

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23 Legislative Veto What is the role of the House of Representatives in the law challenged by Chadha?
If they had not acted, would Chadha have been able to stay in the country?
What was their ruling on Chadha?
(They did not vote against Chadha personally, they rejected the list.)

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24 Post Legislative Veto The ALJ (immigration judge) reopened the proceeding
Does the ALJ or the agency have the right to override the congressional act?
Can the agency refuse to follow what it believes is a congressional action taken under an unconstitutional law?

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25 The Circuit Court DOJ joined Chadha in challenging the law
Why did this produce a "case and controversy" issue?
What is the purpose of the case and controversy provision?
Can Congress modify the requirement?
Are the states bound to have a case and controversy requirement for their courts?
Why did the court invite Congress to submit briefs?

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26 Does History Make the Legislative Veto Constitutional? "Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940-49, nineteen statutes; between 1950-59, thirty-four statutes; and from 1960-69, forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such provisions visions were included in eighty-nine laws."

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27 What if the Legislative Veto is a Useful Law? ... the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.
Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government and our inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies

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28 Bicameralism What was the Great Compromise that was critical to the ratification of the constitution?
How is the senate different from the house?
How were senators originally chosen?
Senate rules are not from the constitution, they are a latter add-on by the Senate
Why was bicameralism key to making the Great Compromise work?

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29 Checks and Balances How does bicameralism it fit into the checks and balances of the US Constitution?
Does the constitution require the states to have bicameral legislatures?
How has the evolution of the Senate's rules changed from the intent behind the compromise?
Did the founders contemplate modern political parties?
How does the legislative veto violate bicameralism?
Would presenting this to the senate have changed the constitutional question?

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30 Presentment Clause What is the president’s role once legislation has passed the house and senate?
What if he does not sign it?
The Constitution grants the President 10 days to review a measure passed by the Congress. If the President has not signed the bill after 10 days, it becomes law without his signature.
pocket veto - However, if Congress adjourns during the 10-day period, the bill does not become law.

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31 Presidential Veto Why does the constitution give the president a veto?
Who did the founders have in mind as president when they put the veto in?
What can Congress do if the president vetoes a bill?
How have bills changed since the founding?
COBRA

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32 When may the House of Representatives Act Unilaterally? (a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 5;
(b) The House elects the president if no candidate gets a majority in the Electoral College.
(c) The House initiates spending bills.

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When may the Senate Act Unilaterally? (a) conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 6;
(b) elects the vice-president if no one receives a majority of votes in the Electoral College.
(c) final unreviewable power to approve or to disapprove Presidential appointments. Art. II, § 2, cl. 2;
(d) unreviewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2. 33

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What is the Only Congressional Joint Resolution with Legal Effect? Congress declares war by joint resolution
Does the Constitution provide a specific mechanism to end wars?
Why? 34

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35 What is the significance of these narrow exceptions? Why did the court find the legislative veto a major constitutional issue?
What did the court rule?
Has this crippled government function?
Does it strengthen agency powers?

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36 Post-Chadha Congress enacted a law requiring notice of certain agency actions and created a delay in their implementation to allow it to pass a law to override them
It is much harder to pass a law and get it signed by the President, which leaves the agencies more latitude than before Chadha
Some state legislatures have asserted the right of legislative veto.

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37 Formal Legislative Review and Oversight of Executive Branch Agencies (1) an appropriations committee, which oversees how the agency spends its budget;
(2) a “substantive” committee, which oversees the substance of the agency’s work; and
(3) “government operations” committee, which is concerned with the agency’s efficiency and its coordination with other parts of the government.
One of each of these three types of committees will exist in both the Senate and the House.
Why did they all miss the financial agency failures?

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38 Informal Legislative Review and Oversight Members of Congress ask agencies about some grievance of their own or their constituents.
all types of contacts (telephone calls, e-mails, and so on) between individual Members of Congress, or the Member’s staffs, or a committee’s staff, and agency officials.
Many of these informal contacts relate to discrete agency actions affecting specific constituents.
Do you think Congressmen get better service?
Is this fundamentally undemocratic?
Where does lobbying come in?
Charlie Wilson's War?

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39 Art II, sec. 2, cl 2 - the Appointments Clause "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

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40 Limits on Congressional Appointments Congress creates and shapes the executive branch
Without specific appropriations, there would be no White House and the president would have to rent space from his own pocket
Under the Appointments Clause, Congress cannot make appointments to executive branch agencies
Congress can impose requirements on appointments
Limitations on who can be appointed, such as requiring political balance on the FEC
Limitations on removal, which create independent agencies discussed later in the chapter

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41 Civil Service Congress developed the Civil Service to protect workers from losing their jobs every time the administration changed
Most personnel are civil service and can only be fired for cause with due process
Limited due process for security agencies
This was carried over and broadened in the Homeland Security Agency

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42 Pros and Cons of the Civil Service Why is it important to you if you want to be a government lawyer?
What are the problems with the system?
How high should it go?
Career track problem for senior people without lucrative outside jobs
Public Health Directors
Lawyers in specialized areas without private practice

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43 Buckley v. Valeo, 424 U.S. 1 (1976) Original process for selecting members of the Federal Election Commission (FEC)
Two members appointed by the President pro tempore of the Senate,
two by the Speaker of the House, and
two by the President (all subject to confirmation by both Houses of Congress), and
the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members
Challenged as an Appointments Clause violation

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44 The Role of the FEC What does FEC do that is forbidden to Congress?
(This is the defining action for an executive branch agency)
How does allowing congress to appoint commission members undermine separation of powers?
Was the selection process for the FEC commissioners constitutional?

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45 The Congressional Budget Office (CBO) The “primary function” of the CBO is to give the House and Senate Committees on the Budget information that “will assist such committees in the discharge of all matters within their jurisdiction.” The CBO also has additional duties, all of which relate to giving Congress information on budget matters.
The Director is appointed for a four-year term by the Speaker of the House of Representatives and the President pro tempore of the Senate.
Does this appointment scheme violate the Appointments Clause?

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46 Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc. 501 U.S. 252 (1991) (“MWAA”) The federal statute authorized the airport to be run by a state Airport Authority
Major decisions of the Airport Authority were subject to the veto of a “Board of Review composed exclusively of Members of Congress.
What is the Appointments Clause issue?
How does having Congressmen on the board violate Bicameralism and Presentment?

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Incompatibility or IneligibilityClauses Prohibit any Member of Congress, while serving in Congress, from being appointed ‘‘to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time,’’ and they provide that ‘‘no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.’’ U.S. Const. art. I, §6, cl. 2.
Can you think of a common violation? 47

48

48 The Library of Congress The Librarian is appointed by the President.
Its operation is overseen, by the Joint Committee of Congress on the Library.
The Joint Committee consists of the chairman and four members of the Committee on Rules and Administration of the Senate and the chairman and four members of the Committee on House Oversight of the House of Representatives.

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Does the Library Oversight Violate the Constitution? Is congressional oversight a violation of separation of powers?
What do we need to know about this oversight to answer the question?
Does it need to be an executive agency at all, i.e., could congress run The Library of Congress and appoint the director?
What do we need to know about the library to decide?
Is there a part of the Library does make rules and get involved in enforcement? 49

50

50 Congressional Removal of Executive and Judicial Branch Officers Impeachment
Brought by the house
Senate as jury
Only for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Why is this of limited effectiveness for agency oversight?
Why is this a problem for dealing with bad judges?
Thomas Porteous is the eighth federal judge to be convicted and removed from office by the Senate

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51 What is an Earmark? Congress enacts a statute that appropriates a lump sum of $10 million for the Indian Health Service (“IHS”)
The appropriations statute is accompanied by a report from the appropriations committee saying that IHS should use part of the $10 million to continue operating an existing medical clinic.
Is this consistent with the founders intent?
The appropriations statute itself, however, does not refer to the clinic. Nor does IHS’s organic statute.

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52 Enforcing Earmarks The organic statute broadly authorizes IHS to spend its appropriation “for the benefit, care, and assistance of the Indians.”
What if the agency ignores the report and closes the health center?
Can this be challenged in court?

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Presidential Control 53

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54 Learning Objectives The president controls agencies through appointing and removing firing agency heads.
The President must appoint and the Senate must confirm officers of the US.
There are separate standards for inferior officers.
Terms of office create independent agencies.
The person who appoints may also remove officers, except Article III judges.

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55 Executive Power

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56 Vesting and Take Care Clauses “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1.
Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.” Art. II, § 3.
Together, these define the source of the president's domestic powers.

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57 Art II, sec. 2, cl 2 - the Appointments Clause "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

58

Recess Appointments Article 2, Section 2:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Why did the founders include this clause?
A recent United States Supreme Court ruling gives the Senate the power to define a Senate Recess and thus prevent recess appointments. 58

59

59 The Unitary Executive Do all of the executive branch powers belong to the president him/herself?
In Chadha, Congress gave the Attorney General the power to stay the deportation of an alien
Can the president tell the AG's how to rule?
Can he only fire the AG?
Why does it matter whether the president has the power or the secretary has the power?
How does the Appointments Clause fit into this analysis?
If it is the president's power, why should the Senate care who he appoints?
What if the Senate will not confirm a secretary?

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Who is a Principle Officer? It is usually clear who is a principle officer, subject to confirmation by the Senate, in existing agencies.
Or if Congress, by law, designates an office as a principle officer.
Controversies arise with new agencies, such as the independent counsel in the Morrison v. Olson case.
Inferior officers are hard to tell from ordinary employees and there are a lot more of them
This is the subject of a United States Supreme Court case this term on the classification of ALJs. 60

61

61 President Nixon and the Independent Counsel Great crisis in presidential control.
The Saturday night massacre
Nixon orders the AG to fire the independent counsel who was investigating Watergate
Two people later, he orders AAG Bork to fire him, probably in a deal already set up by the AG.
Nixon's indirect firing of the independent prosecutor was the background for this law
What was Clinton's biggest political mistake?
Not vetoing the renewal of the Independent counsel law.

62

62 Morrison v. Olson, 487 US 654 (1988) What did Olson hope to do with his suit?
What triggers the appointment of an independent counsel?
Who appoints the independent counsel?
Why class of officer must this then be?
Who can remove an independent counsel for cause?
Who can remove that person, i.e., what is the chain of presidential control?

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63 The Core Function Standard for Inferior Officers Is the independent counsel an "inferior" official?
Does the independent counsel have a policy making role?
Is this a critical area for the president to control the exercise of discretion?
How does the president retain control?
Why will the independent counsel process always be political?

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64 What was the key issue in Olson? The limitation of the removal power to good cause, rather than at-will
Does this impermissibly interfere with the president's power to carry out the laws?
Majority says no, focusing on the preservation of separation of powers
Scalia saw this as a stark limitation on the president's power to exclusively control the executive branch.

65

65 Was Scalia Right? What was he worried about as regards the power of the office?
He stresses the broad powers of the IC
How did this play out in Whitewater, the Clinton investigation?
The current Trump investigation?
What would it cost you to be investigated if you were a junior White House counsel?

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Current Regs on the Special Counsel https://biotech.law.lsu.edu/blog/CFR-2016-title28-vol2-part600.pdf 66

67

Free Enterprise Fund v. PCAOB, 130 S.Ct. 3138 (2010) - I Government agency that regulates accounting firms.
Members appointed by the SEC commissioners, not the President
The Court quoted a prior opinion in which it had said that ‘‘whether one is an ‘inferior’ officer depends on whether he has a superior,’’ and that ‘‘ ‘inferior officers’ are officers whose work is directed and supervised at some level by other officers appointed by the President with the Senate’s consent.’ 67

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Who Controls their Work? The Board’s rules and its imposition of sanctions on accounting firms are subject to approval and alteration by the SEC.
Members of the Board are removable ‘‘at will’’ by the SEC Commissioners.
Is this sufficient control to establish they the members on inferior officers, thus appointable by the SEC rather than the president? 68

69

69 Congressional Determinations If the Congress establishes that the position is an inferior officer, the courts have not second-guessed it - yet.
This might change if Congress created an inferior office that was clearly the job of a principal officer.
Be careful of circular arguments
Just because an officer is not required to be appointed under the appointment's clause, that does not prevent the court from finding that the position is covered by the Appointment's Clause.
The real problem is that the court will also not second guess Congress determining that an officer must be confirmed by the Senate.

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70 Example: General Counsel to a Cabinet Agency What is the classification of the Secretary of Veterans Affairs?
What are the duties of the General Counsel to the Secretary?
Is the general counsel an employee, inferior officer, or principle officer of the US?
Much more authority than just an employee
Does the general counsel make decisions that affect agency policy or enforcement?
What is the level and right of supervision by the Secretary?

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Tenure of Office Act – 1867 If Congress is silent on removal, the officer serves at the discretion of the President
This Act limited the right of presidents to remove cabinet members without the consent of the Senate.
President Andrew Johnson removed the Secretary of War
Was impeached, but not removed by one vote.
There are now no limitations on removal of Cabinet Officers 71

72

72 Myers v. US, 272 US 52 (1926) President Wilson discharged an Oregon postmaster without cause
Postmaster sued for back pay under a law passed after the Tenure in Office Act that required the senate to approve appointment and removal of postmasters
Why all this concern about a postmaster?
Chief Justice and Ex-President Taft wrote the opinion, which found the Tenure in Office Act and related acts an unconstitutional limit on presidential power.

73

73 Humphrey’s Executor v. US, 295 US 602 (1935) Less than 10 years later, removal is again at issue - what is the political change over that period?
Why was the FTC controversial at that time?
What was the restriction on removing FTC commissioners?
How did the lawsuit arise?
President fired Humphrey from the FTC
Humphrey died and his executor sued for the pay for the rest of his term

74

74 Myers Redux Why did the court change its view on the removal power?
How is a postmaster different from an FTC commissioner?
(This has not been important in later cases)
What type of agency does this create?
Where does the independence come from?
Are the agencies independent if the President is in office long enough to appoint all the members?

75

Stopped here 75

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Typical Characteristics of an Independent Agency (1) they are headed by multi-member groups, rather than a single agency head;
(2) no more than a simple majority of these members may come from one political party;
(3) the members of the group have fixed, staggered terms, so that their terms do not expire at the same time; and
(4) they can only be removed from their positions for ‘‘cause” 76

77

How Independent are Independent Agencies? The President usually gets to pick the chair from among the existing commissioners.
Does not control policy, but can influence what issues are addressed
Not subject to OIRA (covered later)
Can be subjected to other executive controls as determined by Congress.
Presidential influence increases the longer a party holds the presidency. 77

78

78 How could the president fire an FTC commissioner? In theory the president could state a cause and fire a commissioner, but it has not happened
It has not been an issue because they get hounded out of office if there is cause
Does this mean that they always stay when the president in unhappy with them?
This is an area where the presidents have not challenged the court – yet.

79

Free Enterprise Fund v. PCAOB II – Nested Independent Agencies PCAO Board members are inferior officers appointed by the SEC Commissioners.
SEC commissioners have terms of office and can only be removed for good cause.
Is there a problem with the PCAO Board members being only removed cause?
What is the presidential chain of control?
The court removed the good cause protection as unconstitutional. 79

80

80 The Politics of the Sentencing Commission Started out as a way to moderate unreasonable sentences
Sentences were made longer and the judges lost discretion to shorten them.
White collar criminals did more jail time
First time drug offenders did a lot more time.
Limited and eliminated various ways to shorten a sentence (no parole)
End result was the opposite of the intention

81

81 Mistretta v. United States, 488 U.S. 361 (1989) The US Sentencing Commission is an independent commission in the Judicial Branch
The members are Article III judges appointed by the President
There are no terms of office
The Court upheld the law allowing the president to remove them, even though this is not an executive branch agency

82

82 Removal Wrap Up What if the statute says an officer serves until removed for good cause, but does not specify a term of office?
Think about what would happen if they could not be removed except for cause.
Remember civil service
Can the head of a department remove inferior officers he has appointed?
Subject to good cause and term of office, if you appoint someone, you can fire them.
Can the president remove all officers, subject to good cause and term of office?
Terms of office for agency heads create independent agencies
These agencies are still executive branch agencies

83

Regulatory Review and Coordination 83

84

84 Review: Executive Orders Orders from the President to agency heads
Sets policy on discretionary decisions
Not defined by the Constitution or legislation

85

85 Types of Executive Orders Domestic Policy Orders
http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders
National Security Orders
http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders
http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders
National Security Orders
http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders
http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders
National Security Orders
http://www.fas.org/irp/offdocs/direct.htm

86

86 Limits on Executive Orders Cannot change budgetary allocations
Cannot change statutory duties
The Gag Rule controversy (Rust v. Sullivan, 500 U.S. 173 (1991)
Cannot abrogate due process
No directing the result of an adjudication
Cannot legislate
President cannot make binding regulations by Executive Order
Cannot use them to change policy for Independent Agencies

87

87 OMB/Executive Order Review Executive branch review done through executive orders
The purpose is to “reform and make more efficient the regulatory process"
We are going to look at this in more detail in Chapter 5, since the big debates over cost benefit analysis are in rulemaking.

88

88 “Principles of Regulation” These principles require agencies to consider many factors when devising a regulation, including the costs and benefits of the regulation; alternatives to the regulation; and the impact of the regulation on state, local, and tribal governments and officials.
Each agency designates a “Regulatory Policy Officer” (“RPO”).
The RPO reports to the head of the agency and must be involved “at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles [for regulation].”

89

89 Regulatory Agenda The regulatory agenda is “an inventory of all regulations under development or review” by that agency.
The “regulatory plan” identifies “the most important significant regulatory actions” that the agency plans to take in the next year or so.
The regulatory agenda (with its regulatory plan) goes to the Office of Information and Regulatory Affairs (OIRA)
OIRA circulates it to other agencies and conducts its own review for conflicts
OIRA also has meetings with the agency and Vice President to coordinate agency action

90

90 OIRA Review of Significant Regulatory Actions Significant regulatory actions are proposed regulations:
(1) that have a major effect on the economy; the environment; public health; state, local, or tribal governments; communities; or existing federal programs;
(2) that conflict with other agency actions; or
(3) that raise novel legal issues or policy issues.
OIRA considers whether the planned regulation:
complies with the applicable law, the President’s priorities, and the principles for regulation.
conflicts with the actions or planned actions of any other agency.
OIRA sends the written results of this review back to the agency and involves the president if it cannot resolve problems

91

91 OIRA and Independent Agencies OIRA reporting requirements, which can be waived
OIRA can make recommendations
If the agency rejects the recommendations, the president or vice-president are not involved
What is the problem with OIRA review of independent agencies?

92

92 Information (Data) Quality Act The Act requires OMB to issue guidelines to agencies ‘‘for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies.’’
Agencies, including independent agencies, must implement these guidelines
Includes provision for individuals to challenge and correct information about themselves
Since this is statutory, not an EO, it is Congress modifying the status of independent agencies and poses no constitutional problem.

93

93 Judicial Review of Executive Review E.O. 12866 states that it “does not create any right or benefit . . . enforceable at law or equity” against the government or its officials.
This prevents direct judicial review of alleged violations of E.O. 12866
This also means that citizens cannot challenge OIRA/OMB review or failure to review.
There can be review of actions by OIRA if these otherwise raise constitutional or administrative law issues.

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Line Item Veto - Clinton v. City of New York, 524 U.S. 417 (1998) What is a line item veto?
Why was a line item veto unnecessary in the founders vision of the operation of federal budget?
How have things changed?
Why do presidents want them?
How might a line item veto cause a president problems?
What separation of powers issues does it raise?
How did the court rule in this case? 94

Chapter 2 1 The Delegation/Nondelegation Doctrine

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Chapter 2 1 The Delegation/Nondelegation Doctrine

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