Art. II Executive Power

Question 1

Overview Summary of Executive Power: Inherent Power

Answer 1

Courts have recognized that the President has some inherent power not expressly provided in the Constitution.
a. Youngstown v. Sawyer: In determining whether the President has such inherent authority, it is particularly relevant whether Congress has
i. authorized the President to take the action (most likely to be upheld);
ii. been silent with respect to the action (gray zone); or
iii. indicated that it disagrees with/does not approve of the President’s action (least likely to be upheld).

Question 2

Overview Summary of Executive Power: Administrative State

Answer 2

Features of the modern administrative state (which allow for technical expertise and non-partisan regulation) pose questions related to separation of powers: Delegations of lawmaking authority to the executive branch; and using appointment and removal policies to make agency officials independent and non-partisan. Two recent trends:
a. Return to non-delegation doctrine (limit Congress’s ability to delegate to agencies) (Gundy v. U.S.; Biden v. Nebraska).
b. Push power up to the President (limit Congress’s ability to make agencies independent of President (and politics)):
i. Limiting Congress’s ability to vest appointment of certain executive officers in department heads, rather than the President and Senate (Arthrex);
ii. More aggressively limiting Congress’s ability to impose “for cause” removal restrictions, which means that the President can remove the leaders of more agencies (like CFPB and FHFA) “at will” (Seila Law v. CFPB, Collins v. Yellen)

Question 3

Overview Summary of Executive Power: Foreign Policy

Answer 3

The Court has been more willing to find inherent power when comes to foreign policy, national security, and immigration, due to the President’s unique role in diplomacy and negotiating with foreign sovereigns (e.g., Zivotofsky v. Clinton; Dames & Moore v. Regan).
a. The Court has allowed broad delegations of lawmaking authority in this area, without the same limitations that the Court might apply in the domestic sphere (i.e., non-delegation doctrine, major questions doctrine, construing statute narrowly to avoid a non-delegation issue) (Curtis Wright; Hamdi v. Rumsfeld; Trump v. Hawaii)

Question 4

Art. II Relevant Constitutional Language

Answer 4

Art. II, Sec. 1, Cl. 1: “The executive Power shall be vested in a President . . .”
Art. II, Sec. 2, Cl. 1: “The President shall be Commander in Chief of the Army and Navy of the United States . . .”
Art. II, Sec. 3: “. . . shall take care that the Laws be faithfully executed. . .”

Question 5

Inherent Presidential Power Summary: Restrictions on Power

Answer 5

President cannot act without express or implied statutory or constitutional authorization (Youngstown v. Sawyer)

Question 6

Inherent Presidential Power Summary: Implied Executive Privilege

Answer 6

(1) The president is absolutely immune from suit based on official acts (Nixon v. Fitzgerald)
(2) The president is not absolutely immune from suit based on private conduct (Clinton v. Jones)
(3) The president is not absolutely immune from civil, criminal, or legislative subpoenas

Question 7

Clarification on Executive Subpoena Immunity

Answer 7

• Official communications of the President, while in office, may be subject to criminal subpoena, but must show a demonstrated, specific need for the information, and balance that against need for
  confidentiality of this specific material (Nixon v. U.S.)
• Personal records of the president may be subject to criminal subpoena (federal or state), according to
  the ordinary rules governing such subpoenas (Trump v. Vance)
• Personal records of the president may be subject to legislative subpoena, but courts must apply a
  balancing standard that takes account of the separations of powers concerns (Trump v. Mazars)

Question 8

Youngstown v. Sawyer (1952): Can the Executive Strike Break the Mills

Answer 8

Reasoning (Black): The executive is limited to powers expressly or implicitly granted by the Constitution or a statute.
Dissent (Vinson): President had the power to do this as part of his duty to “take care” that the laws are faithfully executed.

Question 9

Nixon v. US (1974): No Absolute Executive Immunity

Answer 9

No absolute immunity: While the president has a special interest in secrecy in official communications (national security, candor, diplomacy, etc.), this does not warrant holding all presidential communications are absolutely immune from subpoena

Question 10

Executive Privilege: Suits Against the President

Answer 10

Nixon v. Fitzgerald (1982): President is absolutely immune from “damages liability predicated on his official acts.”
Clinton v. Jones (1997): President is not immune from a civil lawsuit in federal court based on unofficial conduct that occurred before they took office, and the proceeding can go forward while the president is in office.

Question 11

Trump v. Vance (2020):Majority; No Heightened Standard (Demonstrated Specific Need)

Answer 11

Majority (Roberts): If the state subpoena is not issued to manipulate, the documents themselves are not protected (compare Nixon), and the Executive is not impaired, then nothing in Article II or the Supremacy Clause supports holding state subpoenas to a higher standard than their federal counterparts.

Question 12

Trump v. Vance (2020): Dissent

Answer 12

Dissent (Thomas): Not absolutely immune, but should be excused if unable to comply because of official duties.
Dissent (Alito): A prosecutor should be required
(1) to provide at least a general description of the possible offenses that are under investigation,
(2) to outline how the subpoenaed records relate to those offenses, and
(3) to explain why it is important that the records be produced and why it is necessary for production to occur while the President is still in office.

Question 13

Trump v. Mazars (2020): Majority; No Nixon Standard for Legislative Subpoenas

Answer 13

Majority (Roberts): We decline to transplant [Nixon’s “demonstrated, specific need” standard] root and branch to cases involving nonprivileged, private information, which . . . does not implicate sensitive Executive Branch deliberations.
* On the other hand, allowing subpoenas so long as they “relate to a valid legislative purpose,” does not account for the separation of power concerns raised by a congressional subpoena for president’s private information.
* In assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the “unique position” of the President.
* Factors to consider: (1) need for information; (2) breadth of information sought; (3) evidence supporting the need; and (4) burden on the President.

Question 14

Trump v. Mazars (2020): Dissent

Answer 14

Dissent (Thomas): I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not.
Dissent (Alito): I would require the House to spell out (1) the type of legislation being considered; (2) its constitutional authority to enact that legislation; and (3) why the subpoenaed information is needed

Question 15

Non-Delegation Doctrine Summary

Answer 15

Nondelegation doctrine: Congress may lay out a policy and delegate to administrative agencies to fill in the details, but it may not delegate unlimited, unbounded lawmaking authority to the Executive Branch (Panama Refining (1935); Schechter Poultry (1935))

Question 16

Delegation Doctrine Legislative Standard

Answer 16

The legislation must lay out “an intelligible principle” to guide the agency’s discretion; in other words, it must make clear “the general policy” and the “boundaries of [the agency’s] authority.” (Gundy v. U.S. (2019))

Question 17

Panama Refining v. Ryan (1935):

Answer 17

Congress may lay down policies and standards while delegating to the executive the making of subordinate rules within prescribed limits and the determination of facts to which the policy is to apply.

Question 18

Schechter Poultry v. US (1935):

Answer 18

Codes of competition, is an unconstitutional delegation of lawmaking power to the Executive branch.

Question 19

Cases on the Abandonment of Non-Delegation Doctrine

Answer 19

National Broadcasting Co. v. United States (1943)
FPC v. Hope Natural Gas Co.(1944)
American Power & Light Co. v. SEC (1946)
Mistretta v. U.S. (1998)
Touby v. U.S. (1991)
Gundy v. US (2019)

Question 20

Gundy v. US (2019)- Intelligible Principle Requirement

Answer 20

Congress may delegate to administrative agencies so long as the legislation lays out “an intelligible principle” to guide their discretion; i.e., if Congress makes clear “the general policy” and the “boundaries of [their] authority.”
o Dissent (Gorsuch): This exceeds the limits on delegation: (1) If Congress makes policy decisions, can delegate to agency to “fill up the details”; (2) can delegate fact finding (determining if a policy applies); (3) can delegate non-legislative responsibilities.

Question 21

Major Questions Doctrine Policy

Answer 21

Given the “‘history and the breadth of the authority’” asserted by the Executive and the “‘economic and political significance’ of that assertion,” the Court has “ ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” (See also W. Va. v. EPA)

Question 22

Major Questions Doctrine Summary

Answer 22

When Congress intends to delegate authority to an agency to resolve a question of “major economic or political significance,” it must be extra clear about its intent to do so.
Note: This rule is “quasi-constitutional”: It is a canon of statutory interpretation that is informed, in part, by separation of powers principles underlying non-delegation doctrine.

Question 23

Biden v. Nebraska (2023)

Answer 23

Holding (Roberts): In such circumstances, the Secretary must “point to ‘clear congressional authorization’ ” to justify the challenged program, and there is no such authorization here.

Dissent (Kagan): By applying heightened-specificity requirements, the Court thwarts Congress’s efforts to ensure adequate responses to unforeseen events.

Question 24

Unconstitutional Line-Item Veto (Clinton v. NY (1998))

Answer 24

Violation of Art. I

Dissent (Breyer): This is a practical way to achieve the same result as Congress enacting hundreds of separate appropriations bills, each subject to veto. (Functionalist approach

Question 25

Unconstitutional Legislative Veto (INS v. Chadha (1983)):

Answer 25

Bicameralism and presentment requirements of Art. I are intentionally designed to split lawmaking power between two differently comprised houses, and the president.
o Presentment clauses: distribute lawmaking power between both Houses and the President.
o Bicameralism clause: was intended to vest lawmaking power in two differently comprised houses.

Dissent (White): The “[l]egislative veto is more than ‘efficient, convenient, and useful.

Question 26

Principal Officer (U.S. v. Arthrex (2021))

Answer 26

Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court

Nominated by president, confirmed by Senate

Question 27

U.S. v. Arthrex (2021): Killing the Administrative State

Answer 27

APJs who issue final decisions on the validity of patents were performing responsibilities of principal officers, and because they were appointed as inferior officers, their decisions must be reviewed by the director.

“An inferior officer must be directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

Question 28

Inferior Officer (Morrison v. Olson (1988)) (U.S. v. Arthrex (2021))

Answer 28

All other Officers of the United States who are not principal officers

Nominated by president and confirmed by Senate OR Congress may by Law vest Appointment in the President alone, in the Courts of Law, or in the Heads of Departments

Question 29

Morrison v. Olson (1988): Inferior Officer Dynamics

Answer 29

Independent counsel was an inferior officer (not a principal officer), and could therefore be appointed by federal court, because they were removable by principal officer (AG), had limited duties, limited tenure, and limited jurisdiction.

Question 30

Employee of federal government (Lucia v. SEC (2018))

Answer 30

Not covered by appointments clause

Employee vs. inferior officer depends on: (1) tenure and duration of appointment, and (2) whether the position has “significant authority”

Question 31

Lucia v. SEC (2018): Killing the Admin State

Answer 31

ALJs who provisionally decide SEC-related matters are “inferior officers” because they have career appointments and significant discretion in managing adversarial proceedings.

Question 32

“For Cause” Removal Model

Answer 32

Two recognized scenarios when Congress can limit the president’s removal power to “for cause” (Seila Law v. CFPB): (1) multimember expert agencies that do not wield substantial executive power (e.g., Humphrey’s Executor), and (2) inferior officers with limited duties and no policymaking or administrative authority (e.g., Morrison v. Olson)

Congress cannot impose “for cause” removal restrictions on the single director of an agency, “ who, acting alone, wield[s] significant executive power” (Seila Law v. CFPB). But the nature and breadth of the agency’s authority is not dispositive—this applies to single directors whenever the agency does “important work.” (Collins v. Yellen)

Congress cannot impose double-layers of “for cause” protection (Free Enterprise Fund v. PCAOB)

Question 33

Removal Power Summary

Answer 33

“The general rule [is] that the President possesses the authority to remove those who assist him in carrying out his duties.” (Seila Law v. CFPB)

Congress cannot give itself the sole power to remove someone appointed to perform an executive role (apart from impeachment)(Bowsher v Synar)

Question 34

Morrison v. Olson (1988): Interior Officer vs. Principal

Answer 34

Holding (Rehnquist): Several factors lead to concluding someone is an inferior officer: (1) Removability (subject to removal by a higher executive branch official); (2)Duties (empowered to perform only certain limited duties—no power to formulate policy); (3) Jurisdiction (limited in jurisdiction; (4) Tenure (temporary, terminates after specific task).

Dissent (Scalia): “[T]his wolf comes as a wolf.” (Very famous line)

Question 35

US v. Anthrex (2021):

Answer 35

Reasoning (Roberts) (plurality): Rule: “An inferior officer must be directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” (E.g., Edmond v. U.S. (1997))

Severability: In general, “when confronting a constitutional flaw in a statute, we try to limit the solution to the problem” by disregarding the “problematic portions while leaving the remainder intact.”

Dissent (Thomas): Opinion creates new form of intrabranch separation of powers law: It does not explicitly hold that the APJs are principal officers, but rather modifies their responsibilities to be in line with its definition of inferior officer.

Question 36

Seila Law v. Consumer Financial Protection Bureau (2020); Reasoning (Roberts):

Answer 36

We have long recognized that Art. II grants to the President the power of appointment and removal of executive officers. (Myers v. U.S.; Free Enterprise Fund v. PCAOB)

We recognized two exceptions: (1) multimember expert agencies that do not wield substantial executive power (e.g., Humphrey’s Executor), and (2) inferior officers with limited duties and no policymaking or administrative authority (e.g., Morrison v. Olson).

Question 37

Seila Law v. Consumer Financial Protection Bureau (2020); Dissent (Kagan):

Answer 37

“[T]he Constitution—both as originally drafted and as practiced—mostly leaves disagreements about administrative structure to Congress and the President, who have the knowledge and experience needed to address them.”

No basis for limiting Humphrey’s Executor to multi-member agencies: The President has at least as much control over an individual as over a commission.

Question 38

Seila Law v. Consumer Financial Protection Bureau (2020); Relevance Collins v. Yellen (2021):

Answer 38

Collins v. Yellen (2021) applied Seila Law to hold the structure of the FHFA unconstitutional: “The FHFA (like the CFPB) is an agency led by a single Director, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power. . . . [T]he nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.”

Question 39

Preemption of State and Local Laws Checklist; If There is Fed. Law on the Topic:

Answer 39

1. Is the federal law a valid exercise of Congress’s power?
2. Does the federal law preempt state or local law?
   A. Does the federal law expressly preempt state law? (Lorillard Tobacco v. Reilly); or
   B. Does the federal law impliedly preempt state law?
   i. Conflict preemption:
   ii. Field preemption: Does the federal law wholly occupy the field? (Arizona v. US)

Question 40

Preemption of State and Local Laws Checklist; If There is Not Fed. Law on the Topic:

Answer 40

1. Does the state law violate the Dormant Commerce Clause?
   A. Does it burden or discriminate against out-of-state businesses or commercial activity?
   
   • Do one of the exceptions apply?
   • Is the law narrowly tailored to serve a legitimate government purpose?
     B. Does the law unduly burden interstate commerce?
   • Does the burden on commerce outweigh the benefit to the state?
2. Does the state law violate the Privileges and Immunities of Art. IV?
   A. Does it discriminate against out-of-state residents with respect to fundamental rights or important economic activities?

Question 41

Lorillard Tobacco v. Reilly (2001); Reasoning (O’Connor):

Answer 41

We work from assumption that traditional police powers of states (here, regulating advertising) “are not to be superseded by federal law unless that is the clear and manifest purpose of Congress.”

“Congress pre-empted state cigarette advertising regulations like the Attorney General’s because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media in order to address concerns about smoking and health.”

Question 42

Lorillard Tobacco v. Reilly (2001); Dissent (Stevens):

Answer 42

This was intended to preempt state regulations related to the content of labeling/advertising to avoid a patchwork of different rules that would hinder interstate marketing and distribution, and this purpose does not apply to local zoning rules governing the location of cigarette advertising or placement/display at retail outlets.

Question 43

Implied Preemption Relevance

Answer 43

Illustrates two ways in which conflict preemption may occur: (1) If it would be impossible to comply with both state and federal law. (2) if state law would be an obstacle to accomplishing the goals of the federal law. Pac. Gas provides one example of how the Court considers whether a state law is an “obstacle” to the goals of federal law.

Question 44

“Impossibility”: Florida Lime & Avocado Growers v. Paul (1963):

Answer 44

A holding of preemption “is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce.”

Question 45

“Obstacle”: Pacific Gas & Electric Company v. State Energy Resources Commission (1983):

Answer 45

Not impossible to comply with both state and federal law, since the AEA does not require the construction of nuclear reactors.

“It is well settled that state law is preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”

Question 46

Field Preemption: Arizona v. US (2012): Relevance:

Answer 46

if courts find that Congress intended to occupy an entire field, federal law may preempt state law even if the state law is designed to complement the federal law (to achieve the same goals) and applies the same substantive standards

Question 47

Arizona v. US (2012); Field Preemption:

Answer 47

Reasoning (Kennedy): The principle of field preemption is that “the States may not enter, in any respect, an area the Federal Government has reserved for itself.”
Dissent (Scalia): As a sovereign, AZ has the inherent power to exclude persons from its territory, subject only to limitations in the Constitution or constitutionally imposed by Congress.

Question 48

Dormant Commerce Clause Policy

Answer 48

established interdependence of the states only emphasizes the necessity of protecting interstate movement of goods against local burdens and repressions. - H.P. Hood & Sons, Inc. v. Du Mond (1949)

Question 49

Dormant Commerce Clause Flowchart; Positive Discrimination:

Answer 49

1. Does the law discrimination (in purpose or effect) against out of state activity?- YES
2. Does either exception apply?
   A. Has Congress authorized the discriminatory policy?
   B. Is the state acting as a market participant, (i.e., government business, employment, or benefit program)?
3. IF NO, then heightened scrutiny (Philadelphia v. NJ; Hunt v. WA Apple Producers)

Question 50

Dormant Commerce Clause Flowchart; NEgative Discrimination:

Answer 50

1. Does the law discrimination (in purpose or effect) against out of state activity?- NO
2. Does either exception apply?
   A. Has Congress authorized the policy?
   B. Is the state acting as a market participant, (i.e., government business, employment, or benefit program)?
3. IF NO, then interest balancing.

Question 51

Dormant Commerce Clause Heightened Scrutiny

Answer 51

Is the law narrowly tailored to advance a legitimate local purpose? (Philadelphia v. NJ; Hunt v. WA Apple Producers)
A. Is the local purpose legitimate?
B. Is the law narrowly tailored (i.e., could the local government achieve the same purpose in a less-burdensome way)?

Question 52

Dormant Commerce Clause Interest Balancing

Answer 52

Is there a substantial burden on interstate commerce? (Pork Producers v. Ross)

IF YES, do the benefits to the state government outweigh the burdens on interstate commerce (Pike v. Bruce Church

Question 53

Facially Discriminatory to States Commerce Laws; Philadelphia v. New Jersey (1978); Relevance:

Answer 53

Relevance: Illustrates the principle that facially discriminatory laws are regarded as presumptively invalid, and subject to heightened scrutiny, and will not be upheld unless they are narrowly tailored to serve a legitimate state interest (i.e., if there are no reasonable non-discriminatory alternatives are available).

Question 54

Facially Discriminatory to States Commerce Laws: Philadelphia v. New Jersey (1978); Relevance:

Answer 54

Reasoning (Stewart): When state legislation achieves “simple economic protectionism,” there is “a virtually per se rule of invalidity.”

Dissent (Rehnquist): State has a legitimate interest in this discriminatory law, and this is narrowly tailored to achieve that interest.

Question 55

Facially Neutral Discriminatory to States Commerce Laws: Hunt v. WA State Apple Advertising Commission (1977); Relevance

Answer 55

Illustrates how laws that do not explicitly discriminate against out-of-state commerce may nonetheless be found discriminatory, based on evidence of purpose and/or effect.

Question 56

Facially Neutral Discriminatory to States Commerce Laws: Hunt v. WA State Apple Advertising Commission (1977); Reasoning

Answer 56

Reasoning (Burger): Heightened scrutiny: When a law discriminates against interstate commerce like this, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake

Comparison: Exxon v. MD (1978): Different from Hunt v. WA in that it does not give in-state companies a clear advantage over out-of-state companies, nor does it place additional costs on out-of-state retailers, or them from doing business in state.

Question 57

Non-Discriminatory to States Commerce Laws Main Case: Pike v. Bruce Church (1970): Relevance

Answer 57

Relevance: Illustrate the balancing test that applies when a law substantially burdens interstate commerce but is not deemed discriminatory (in purpose or effect). (But see Gorsuch’s opinion in Pork Producers v. Ross (2023) (questioning this reading)).

Question 58

Non-Discriminatory to States Commerce Laws Main Case: Pike v. Bruce Church (1970): Reasoning (Stewart):

Answer 58

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

Question 59

Contemporary SCOTUS Split on Pike: Pork Producers v. Ross (2023): Relevance

Answer 59

Relevance: Indicates that the Court is divided about the meaning of Pike, and whether its balancing test applies when a non- discriminatory law incidentally burdens commercial activity that is predominately conducted out-of-state.

Question 60

Contemporary SCOTUS Split on Pike: Pork Producers v. Ross (2023): Reasoning (Gorsuch):

Answer 60

• We reject the Pork Producers’ argument for an “almost per se” rule forbidding enforcement of state laws that have the “practical effect of controlling commerce outside the State.” This is unsupported by our precedent and many state laws have the incidental effect of controlling out-of-state commercial activity.
• Also reject the Pork Producers’ argument that this fails the balancing test under Pike, for two reasons:
  o Not majority support for this point: Pike is really about looking to practical effect to smoke out discriminatory purpose, and pet’r’s “nowhere suggest that an examination of Proposition 12’s practical effects in operation would disclose purposeful discrimination against out-of-state businesses.”
   Judges are “not institutionally suited” to balance the interests in a case like this.
  o Majority agree: This does not impose a substantial burden on out of state commerce, and therefore we do not need to reach the Pike balancing analysis.

Question 61

Contemporary SCOTUS Split on Pike: Pork Producers v. Ross (2023): Dissent (Roberts, Alito, Kavanaugh, Jackson):

Answer 61

Do not agree with Gorsuch’s interpretation of Pike, and would find that petitioners’ have plausibly alleged a substantial burden against interstate commerce, and would remand to determine whether petitioners have stated a claim under Pike balancing.

Question 62

Privileges and Immunities clause of Art. IV Summary

Answer 62

1. Does the law discriminate against out of state residents based on a fundamental right or an interest “sufficiently fundamental to the promotion of interstate harmony” (e.g., the right to earn a living)?
2. IF YES, is the discriminatory policy substantially related to accomplishing a substantial state interest?
   A. Is the state interest substantial?
   B. Is there a substantial relationship between the discriminatory policy and the interest it is trying to achieve?

Question 63

How-To Assess Privileges & Immunities Clause: Supreme Court of New Hampshire v. Piper (1983):Reasoning (Powell):

Answer 63

Privileges and Immunities Clause was intended to create a national economic union

The Clause does not preclude discrimination against nonresidents where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective.

In deciding whether the discrimination bears a close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means.

The state’s interests are not substantial, and the means are not substantially related to achieving them. It could accomplish these goals through less-restrictive means.