Chapter 2 Part II



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Chapter 2

  • Part II


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?



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?

  • Where does lobbying come in?

  • Charlie Wilson's War?



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.

  • The appropriations statute itself, however, does not refer to the clinic. Nor does IHS’s organic statute.



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?



Executive Power



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



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 override the AG's decision?
    • Can he only fire the AG?
  • Why does it matter whether the president has the power or the AG 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?


Great crisis in presidential control.

  • Great crisis in presidential control.

  • What was the Saturday night massacre?

  • Why do the liberals really hate Bork?

    • He carried out Nixon's order to fire Cox
  • Nixon's 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

  • Hubris - it had been attacking Republicans and he was going to have the most ethical administration



Why was Olson suing and what did he want?

  • Why was Olson suing and what did he want?

  • What triggers the appointment of an independent counsel?

  • Who appoints the independent counsel?

  • Why will this always be political?

    • Reno and Gore
    • Ashcroft/Gonzales and Halliburton


Is it an "inferior" official?

  • Is it an "inferior" official?

    • yes, because of the limited mandate - no policy making
  • Is this a critical area for the president to control the exercise of discretion?

    • no, that is why it is independent
  • Does the president retain enough control?

    • yes, good cause firing is enough, and this is exercised through someone (AG) the president controls


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, rejects the use of "quasi-legislative/quasi-judicial" labels and focuses on separation of powers


Scalia saw this as a stark limitation on the president's power to exclusively control the executive branch

  • Scalia saw this as a stark limitation on the president's power to exclusively control the executive branch

  • He pointed out that while the IC may not intimidate the president, it will affect executive branch officers who are subject to what seems political prosecution



Was Scalia Right?

  • What was he worried about as regards the power of the office?

    • He stresses the broad powers of the IC
  • What would it cost you to be investigated?

  • Was Scalia right about the impact of the IC?



Edmond v. US, 520 U.S. 651 (1997) The Supervision Test

  • Coast Guard criminal appeals judges are subject to administrative supervision by the Judge Advocate General, who also has the power to remove them without cause.

  • The judges’ decisions are subject to review by the Court of Appeals for the Armed Forces.

  • In Edmond, the Court held that judges of the Coast Guard Court of Criminal Appeals are “inferior” officers.

    • The Edmond Court based that holding exclusively on the fact these judges’ work is directed and supervised by principal officers.


Congressional Determinations

  • If the Congress establishes that the position is an inferior officer, the courts have not second-guessed it.

    • 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


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?


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



Why all this concern about postmasters?

  • Why all this concern about postmasters?

    • 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
  • 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.



Less than 10 years later, Meyers is again at issue - what is the political change over that period?

  • Less than 10 years later, Meyers 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?



Why did the court change its view on the removal power?

  • 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?


In theory the president could state a cause and fire a commissioner, but it has not happened

  • In theory the president could state a cause and fire a commissioner, but it has not happened

  • Does this mean that they always stay when the president in unhappy with them?

  • It has not been an issue because they get hounded out of office if there is cause

  • This is an area where the presidents have not challenged the court



How did the Sentencing Commission Affect Sentencing?

  • 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



Mistretta v. US – 1989

  • This case attacked the US Sentencing Commission as an impermissible limitation on the Judicial Branch

    • The Commission is an independent commission in the Judicial Branch
    • The members are appointed by the President
    • There are no terms of office
  • The Court found that the president could remove them, even though this is not an executive branch agency



The Mistretta Ruling

  • Read to as holding that the president can remove anyone he appoints, as long as there are no terms of office

  • The Court upheld this commission because of it peculiar nature, finding that it did not unduly affect the judicial branch

    • Is there any right to judicial discretion?
    • Probably limited by the power of congress to set sentences - nothing says judges are allowed sentencing discretion
  • The powers of the sentencing commission have now been limited on due process grounds



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.
  • Can the head of a department remove inferior officers he has appointed?

    • Unless Congress creates a term of office, if you appoint someone, you can fire them.
  • Terms of office for agency heads create independent agencies

    • These agencies are still executive branch agencies


Review: Executive Orders



Types of Executive Orders

  • Domestic Policy Orders

    • http://www.whitehouse.gov/news/orders/
  • National Security Orders

    • http://www.fas.org/irp/offdocs/direct.htm


Limits on Executive Orders

  • Cannot change budgetary allocations

  • Cannot change statutory duties

    • The Gag Rule controversy (Rust v. Sullivan)
  • 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



OMB/Executive Order Review

  • Executive branch review done through executive orders

  • The purpose is to “reform and make more efficient the regulatory process"



“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].”



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


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



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?



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.



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.



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?





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