Article 2: Executive Power Flashcards
Theories of Executive Power:
(1) Executive of “enumerated” power
President may only act under express constitutional or statutory authority
i. Judiciary may strike down presidential actions not expressly authorized by Constitution or statute
ii. Madison= written Constitution vests power, why expand? Don’t for any other branch
iii. Hamilton= disagrees, Pres. has some inherent powers
Theories of Executive Power: (2) The Inherent powers of being executive
a. President may exercise “inherent” authority. Flows from the “aggregate of the President’s constitutional powers.” The scope of the inherent power done on a case by case basis
i. art. II, Sec. 1 (executive power shall be vested in a President);” Art. II, Sec. 3 (he shall take Care that the Laws be faithfully executed); Art. II, Sec. 2 (shall be the Commander in the Chief of the Army & Navy of the US).
ii. Pres. Power is not fixed but fluctuates depending on Congress action/inaction
- Pres. Power at its lowest ebb when she takes measure incompatible with the expressed or implied will of Congress
- Pres has very high burden to prove constitutionality
- Separation of powers issues fall under this - Pres has come authority to act in the “twilight zone” when Congress has been silent
- Pres authority depends on:
- - Imperatives of events
- - Contemporary imponderables - Pres has most authority to act when she does so to an express or implied authorization from Congress
- Action unconstitutional only if statute authorizing it is unconstitutional
Theories of Executive Power: (3) Irrespective of what Congress does, the President has the inherent authority to act unless the action violates a specific constitutional limitation (like 1st Amendment).
a. Informs Unitary Executive Theory = grounded in “take Care” clause
i. Weak UET: Constitution requires the Pres to have close and exclusive control over all the activities and officers in the executive branch to ensure law being faithfully executed
ii. Strong UET: Constitution is itself, a law entrusted to the Pres to execute faithfully
Doctrinal Framework: A: Youngstown:
- Korean War happening and Congress passes Defense Protection Act to curb inflation
- Unions wanted wage increases, steel industry passed the cost onto the federal gov.
- Pres. Truman tried to mediate between labor and steel, neither refused to budge
- Union went on strike, Truman seized all steel mills to keep war-time assembly lines moving
- Express granted = unconstitutional b/c no express grant from Congress/constitution to seize private property during wartime
- The spending power is being usurped (seizure REQUIRES just compensation, binds Congress to spend money NOT the Pres.)
- Congress considered giving Pres the authority to seize industries to address labor dispute AND REJECTED the policy
- J. Jackson’s ebbs analysis:
- Pres power at lowest ebb when she takes measures incompatible with the expressed or implied will of Congress (Congress not silent on this issue b/c statutory policies on the books would be inconsistent with the seizure)
Doctrinal Framework: A: U.S. v. Nixon
Holding that executive privilege is an inherent power of the President, BUT it is NOT absolute.
After Saturday Night Massacre, two new investigations (special counsel and House)
Special counsel wanted to subpoena Oval Office tapes, and DC denied Nixon’s motion to quash
- Here, Court accepts two types of executive privilege absolute and conditional
- Here, Court says conditional executive privilege here because no military, diplomatic, and national security interest
- Pres. is acting in a manner that usurps the judiciary’s need for evidence at a criminal trial (5th/6th amendment guarantee)
- Need for criminal trial outweighs executive privilege
- No national security in the selected portions of the Oval Office tapes
Doctrinal Framework: A: Cheney v. U.S. Dist. Ct. for DC:
Assert executive privilege to not release documents to environmental group
- Suggests executive privilege is more important than discovery in a civil discovery motion
- Weigh interest in executive privilege with impairment of another branch in the performance of its constitutional duties
Executing Law in the Administrative State, Non-delegation and Intelligible Principle: Rule
Congress cannot delegate its legislative responsibility to other branches (non-delegation doctrine). However, Congress can give agencies direction and guidelines to execute policy through the Intelligible Principle doctrine.
- Congress “legislating” and creating law, administrative agencies “executing” the law.
o Congress passes a law that gives (some sort of) regulatory standard, and the administrative state is executing that broad instruction
Executing Law in the Administrative State, Non-delegation and Intelligible Principle: A: Panama Refining v. Ryan:
Challenge to law that said Pres. can place quotes on the amount of hot oil that could be produced in each state.
- Court said it was unconstitutional because it provided no guidance about how hot oil should be prohibited
- Left Pres. without a standard, and he could do whatever he wanted
- (NOT CALLED THIS AT THE TIME) but no intelligible principle that set a standard of conduct
Executing Law in the Administrative State, Non-delegation and Intelligible Principle: A: Whitman
The Clean Air Act tells EPA to set standards for air pollution requisite to protect public health.
- Constitutional because the intelligible principle = requisite (sufficient, but no more than necessary) to protect public health
- Standard set by Congress is “requisite” to protect public health
- EPA is doing some lawmaking actions, but this is not legislating because they are only executing the law set out by Congress
Legislative Veto: R
Congress cannot reserve for itself, or some subset of itself, the authority to disprove rules duly promulgated by administrative agencies. Once Congress delegates power to an administrative agency, Congress cannot exercise substantive oversight except by passing a new law.
Legislative Veto: A INS v. Chada
Law that said a single member of Congress can reverse the decision of an immigration court judge about a person’s suspended immigration status.
Unconstitutional because President does not get to use his constitutional role in law-making
- Presentment clause says Pres. needs to review Congressional action in order to protect individuals
- If only Congress makes laws, poor quality, ill-considered, oppressive
- Constitution requires bicameralism because laws need to be fully and carefully considered.
- Framers explicit about instances where bicameralism not needed (appointment of ambassadors, impeachment proceedings, etc)
Congress passed INS, delegated AG the authority to allow deportable aliens to remain in the US.
Law at issue is LEGISLATING (requires bicameralism) because it changes the status of Chadha from “suspended” to “deportable” = Congress adjudicating about a small group of people
Policy = how else can Congress regulate agency action?
- Enact legislation disapproving agency action
- Control agency funding
- Congressional oversight hearings
- Draft narrower, more explicit statute delegations
- Appointment and removal of admin. officials
Pres. Control of Administrative Agencies: Appointment Power - Who is an officer of the united states? R
R: An officer of the United States is a person who (1) holds a “continuing” office as established by law and (1) wields “significant authority.”
Significant authority test: someone who…
- Issue decisions
- Receive evidence
- Take testimony, Examine witnesses, Take pre-hearing depositions
- Conduct trials
- Admin oaths, Rule on motion, Regulate the course of a hearing
- Rule on admissibility of evidence
- Power to enforce compliance with discovery orders
Pres. Control of Administrative Agencies: Appointment Power - R: Principal v. Inferior Officer
Principal officers: The Pres shall nominate, and with the advice and consent of the Senate, shall appoint officials of the U.S. But Congress may, by law, vest the appointment of such inferior officers as they think proper, in the (1) Pres. alone, (2) in the courts of law, or (3) in the heads of departments. Congress can never itself appoint administrative officials.
If an officer is not an inferior officer, then the Pres. must nominate that person and appoint that person with the advice and consent of the Senate.
- Inferior Officer Factors:
- Subject to removal by a higher Executive branch official
- Empowered by Act to perform only certain, limited duties
- Jx limited
- Limited in tenure
Pres. Control of Administrative Agencies: Appointment Power A: Morrison v. Olson
Congress passed a law that allows independent counsel investigate executive officials. IC looking at either the Office of Legal Counsel in the White House told Neal Gorsuch’s mom (admin for the EPA) to not comply with House subcommittee’s hearing. OLC says that IC is a principal officer who needed to be nominated by Pres. and confirmed by the Senate.
Inferior officer b/c…
- AG can remove
- Can only investigate, does not have policy-making authority, not making rules
- Limited Jx is authorized by the court of what the IC can and cannot investigate
- Limited tenure b/c once job is done, then you’re out
Track #2 ok b/c IC was appointed by a court of law
Pres. Control of Administrative Agencies: Appointment Power A: NLRB v. Noel Canning
Obama appointed 3 nominees to the National Labor Relations Board while Congress on holiday break. Senate sues as unconstitutional use of Recess Appointment.
Use all interpretive toolboxes to look at Recess Appointment:
(a) Text
- Majority: Text ambiguous about meaning of Recess and Sessions so rely on history
- - Session: formally: one of 2 breaks when Congress meets, informally, whenever Congress assembles to do business
- - Recess: formally: break during formal sessions of Congress; informally, temporary interruptions of the Senate’s proceedings
- Dissent: Only need to look at the ordinary definitions at the time of founding
(b) Structure
- Take care clause
- - Pres always needs to make sure that laws are being faithfully executed, but Congress does not always need to be in session
(c) History (intention or purpose)
- Majority: Pres. doing this for a long time for lots of different situations
- Dissent: only been doing it since the 1920’s, NOT during the Founding
(d) Policy
- If Court allowed dissent reading, Senate can structure its affairs in a way that allows it to shirk its advice and consent responsibilities and prevent the Pres from doing anything about it
Court said these appointments were unconstitutional b/c they were done during the breaks in pro forma sessions, not “recesses” for the recess appointment
