Accountability to the President Flashcards
Executive Command: constitutional authority
- Article II, Section 1: the executive power shall be vested in a President of the United States of America
- Article II, Section 2: he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective offices
- Article II, Section 2: all other 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.
- Article II, Section 3: he shall take care that the laws be faithfully executed.
Executive command: Youngstown
Presidential power falls into three camps:
(1) When the president acts pursuant to the express or implied will of Congress; here the President’s powers are at their highest
(2) When the president acts in the absence of a congressional grant of authority; here, the powers of Congress and the President can overlap (depends upon the events)
(3) When the president takes measures incompatible to those of Congress. Here, the president’s powers are at their weakest.
Executive command: San Francisco v. Trump
- President’s authority must stem from either an act of Congress or the Constitution itself.
- Application of Jackson’s 3rd category
- Sheer amount of failed legislation, as well as the divisiveness of the issue supports a finding that the authority should rest with the legislature.
Appointment: principle officer or inferior officer?
a. Inferior officers are directed and supervised at some level by someone appointed by nomination by President with advice and consent of Senate, i.e. by principal officer. Edmond.
b. Is the officer removable by higher Executive Branch official; limited duties; limited jurisdiction; limited in time? Morrison v. Olson
Appointment: officer or employee?
An officer is someone who
a. Exercises significant authority. Buckley v. Valeo
b. Whose position is established by law and
i. who exercises significant discretion or
ii. who exercises some independent authority. Freytag and Lucia.
Appointment: Buckley rule
i. The Constitution breaks appointment power up into two categories:
1. Primary class (‘principle officers’): nomination by President, approval by Senate
2. Inferior class (‘inferior officers’): Congress may vest appointment power in the President, Courts of Law, of Heads of Departments.
ii. Under Myers and Ex parte Hennen, a postmaster first class and a clerk of a district court were both inferior officers, and so here, these officers are likely inferior officers. As such, Congress may only vest this power in the President, Courts of Law, and Heads of Departments; here, the Speaker of the House and the President pro tem are none of the above, and so the appointment process violates Art. 2, §2, cl. 2.
Appointment: Freytag rule
- An officer is someone
a. whose position is established by law (duties, salary, means of appointment set out in Tax Code), AND
b. who exercises significant authority
i. Exercises discretion: take testimony, conduct trials, rule on admissibility of evidence, enforce compliance with discovery orders
ii. Exercises independent authority in certain types of cases: final decisions in declaratory judgment cases and limited amount proceedings
Appointment: members of Congress
- Ineligibility Clause
a. Congress cannot create executive positions for themselves, or cannot vote to raise the pay of an executive position they expect to occupy - Incompatibility Clause
a. Congress members cannot service in the executive branch simultaneously
Appointments: judges
Appointment of judges to the Federal Sentencing Commission does not violate the Constitution
Appointment: Recess Appointment
The President can make appointments while Congress is in recess without the advice and consent of the Senate.
Removal: general rule
- Myers: Officers are removable at will, with very few exceptions
- Humphrey’s Executor: Removal for cause of FTC Commissioners (5-member, bi-partisan, 7-year terms) is constitutional
- Bowsher v. Synar: Congress cannot be involved in removal
- Morrison v. Olson: Do the removal restrictions impede the President’s constitutional duties?
a. Type of power exercised by officer
b. Is “ample authority” retained to ensure that officer is competently performing her statutory responsibilities? - Free Enterprise Fund v. Public Accounting Oversight Board: No dual for-cause restrictions
- Seila Law v. CFPB: Single-director for-cause restriction violates “our constitutional structure” which is: “divide power everywhere except for the Presidency and render the President directly account to the people through regular elections.”
Removal: Myers
- Postmaster first class for Portland, Oregon. Appointment by nomination by President with the advice and consent of the Senate. Removed prior to the end of 4-year term without Senate consent. Myers sues for back pay in the Court of Claims based on removal in violation of statute
- Rule: Supreme Court finds statutory restriction unconstitutional because “the power to remove inferior officers, like that to remove superior officers, is incident of the power to appoint them.”
Removal: Humphrey’s Executor
- 5 members; Appointment: President with advice and consent of Senate, and a maximum of 3 from one party; Term of office: 7 years; Removal “for cause”
- President may remove for “inefficiency, neglect of duty, or malfeasance in office”
- Distinguished from Myers – the function of the FTC is “quasi-legislative and in part quasi-judicial.” As such, Congress can restrain the President’s power to remove; it could not, however, restrain the President’s power if the at-issue position was purely executive.
Removal: Bowsher
- Gramm-Rudman Act: Comptroller General subject to removal by Congress transgresses on the President’s sole authority to see that the laws be faithfully executed. The Constitution spells out, in clear terms, when Congress has the power to remove an executive officer (impeachment, removal). To give Congress the power to remove the Comptroller General goes beyond this very circumscribed and limited function.
- “The Constitution does not contemplate an active role [i.e. participate in removal] for Congress in the supervision of officers charged with the execution of the laws it enacts.”
Removal: Seila Law
- Director of the CFPB serves a five-year term, cannot be removed by the President (except for “inefficiency, neglect, or malfeasance), and is not accountable to voters (or really anyone else).
- General rule: President has the power to remove.
- Two exceptions:
a. Quasi-judicial/quasi-legislative (e.g. Humphrey’s Executor)
b. Inferior officers: limited jurisdiction and tenure – okay to limit Pres. removal power - Two basic considerations:
a. Whether it is a historical anomaly
b. Whether it is politically accountable (given that the concentration of power in the hands of the President is checked by voting. - On both counts, it violates the Constitution’s basic appropriation of removal power to the President.
- General holding: limited Humphrey’s Executor to multimember expert agencies that do not wield substantial executive power
