Congressional and Presidential Control of Agencies

Question 1

What four legitimate mechanisms (bestides eachting ro repealing statutes) allows Congress to control agencies?

Answer 1

1. “Report and wait” provisions: Congress can require agencies to report a rule they want to pass, then Congress can pass a statute to block it.
2. Oversight power of congressional committees
3. Congress may restrict the President’s removal power (Morrison)
4. Impeachment of officers

Question 2

What four mechanisms can congress NOT use to control agencies?

Answer 2

1. No legislative vetos (Chadha)
2. Cannot appoint administrative Officers of the US (Buckley)
3. Cannot have a member of Congress itself serve on an administratie body
4. Limited removal of administratie officers (Bowsher)

Question 3

What mechanisms allow the President to control agencies?

Answer 3

1. Appointments if given the power by Congress
2. Removal: allowed to have at-will for executive (regular) agencies, restricted removal power for independent agencies but has constitutional duty to “take care”
3. Executive Orders

Question 4

What are the two main reasons why the court in (blank) found legislative vetos to be unconstitutional?

Answer 4

1. Bicameralism: legislative action must be passed by both houses. Legislative vetos only required one house’s authorization.
2. Presentment: legislative action must be prseented and either signed by the presiend or vetoed by the president and overriden by 2/3 vote in both houses

Question 5

When is something considered a legislative action?

What does the phrase “legislative action” apply to?

Answer 5

Something is a legislative action when it alters the legal rights, duties, and reations of persons outside the legislative branch.

The term applies to any order, resolution or vote.

Question 6

True or false: Congress generally has the power to appoint officials to full the agencies it creates.

Answer 6

False. COngress generally cannot appoint officials to fill the agencies it creates

Question 7

Most agency officials are considered (blanks) whose appointments are governmed by Article 2 Appointments Clause.

Answer 7

“Officers of the United States”

Question 8

Principle Officers

What are they?

Who must they be appointed by?

Answer 8

Principle officers are high level officials in the executive branch and heads of independent agencies. There is no one in the government hierarchy between them and the President.

They must be appointed by the President with advice and consent of the Senate

Question 9

Inferior Officers.

What are they?

Who can appoint them?

Answer 9

Inferior Officers are lower level officials in the Executive Branch, under the supervisions of the Persident’s appointees.

Congress may vest appointment power in the President, the Courts, or Heads of departments.

Question 10

In Free Enterprise, what are the two situations that the court recognizes where an officer is interior rather than principle

Answer 10

1. When the official’s work is subject to close supervision and the official is removable at will by an officer who has been appointed by the President with Congress’ consent
2. When an official performs only limited duties, has narrow jurisdiction, and a tenure that ends when his or her duties have been discharged.

Question 11

True or False:

The Appointments Clause authorizes Congress to appoint Officers of Congress

Answer 11

True. Congress can still appoint Officers (employees) of Congress to help exercise its legislative powers

Officers of Congress are considered employees (civil servants)

Officers of the United States are subject to appointments Clause requirements, whereas employees are not

Question 12

What are the only four provisions in the Constitution, explicit and unambiguous, by which one House of Congress can act alone with the unreviewable force of law?

And how does this relate to the holding in Chadha?

Answer 12

1. House Of Reps given power to initiate impeachments (adjudication)
2. Senate can conduct trials following impeachment charges and can convict after trial (adjudication)
3. Senate can approve or disapprove presidential appointments
4. Senate can ratify treaties negotiated by the President

Holding in Chadha: shows the constitution would have explicitly given congress power of legislative veto if it inteded to do so.

Question 13

What does Expressio Unius mean

Answer 13

Expressio Unius: If something is explicitly stated, the things not explicitly stated are not included in that list

Question 14

What is a sunset law?

Answer 14

Sunset laws are enacted in statutes, force periodic legislative reexamination of the performance of government programs

Question 15

What is the Government in the Sunshine Act?

Who does it apply to?

What is it designed to promote?

Answer 15

1. Parallels “open meetings” laws of states, designed to curb secrecy in government

Limited to FOIA’s

2. Applies to agencies headed by collegial bodies like FTC, SEC, and CPSC

Obligates agencies to provide advance notice of meetings

3. Designed to promote procedural fairness and openness.

Question 16

What is FOIA - Freedom of Information Act (1996)

Answer 16

Requires an agency, when requested by any member of the public, to make available for examination any “agency record” that does not fall w/in any of ten specified exempt categories

Agency may release exempt documents unless law prohibits it

Question 17

True or False:

Congress can remove executive officials by impeachment

Answer 17

True. This is the only way Congress can remove executive officials

Question 18

True or False:

Congress cannot abolish an agency or office by statute

Answer 18

False. Congress CAN abolish an agency or office by statute

Question 19

True or False:

Congress can restrict President’s power to remove certain officials.

Answer 19

True (Humphrey’s, Morrison)

Question 20

True or False:

Congress cannot remove officers who exclusively serve a legislative function

Answer 20

False. Congress CAN remove exclusively legislative officers

Question 21

True or False:

President can remove some officials “at will”

Answer 21

True.

Question 22

Bowsher v. Synar

What is the effect of the fact that the Comptroller General was head of the government accountability office (accounting) a LEGISLATIVE branch agency

Answer 22

Does not matter. CG’s responsibilities made him essentially an executive officer. Congress may not remove officers who exercise executive power

Question 23

Heads of independent agencies are only removable (blank) by (who)

Answer 23

Heads of independent agencies are only removable FOR CAUSE by the President

Question 24

Heads of executive agencies are removable (blank) by (who)

Answer 24

Heads of executive agencies are removable AT WILL by the President

Question 25

What was the Humphrey’s test to determine whether or not the President can remove an officer at will

Answer 25

Ask, is the agency serving a “purely executive” function.

If yes, president can remove at will.

If no, president cannot.

Question 26

What is the test used in Morrison v. Olson to determine whether or not Congress can limit the president’s removal power?

Answer 26

Morrison Test: does the limitation on the Presidential removal power impede his ability to fulfill his constitutional duty to “Take Care” that the laws be faithfully executed under Article II §3?

If no, the isolation of the independent agency is constitutional.

Question 27

What was the holding in Morrison?

Answer 27

The court found that the appointment is constitutional bc the independent counsel is an “inferior officer.”

Removal is constitutional bc it doesnt impede the president’s ability to “Take Care” that the laws be faithfully executed.

Question 28

Morrison: What four factors are used to determine that an officer is an “inferior officer”?

Answer 28

1. Subject to removal by a superior
2. Simited in duties
3. Limited in jurisdiction
4. Limited in tenure

Question 29

Where can an EO start?

Answer 29

Can start in any federal agency

Question 30

What are the four steps to enactment of an EO?

Answer 30

1. Proposed EO submitted to OMB
2. Omb approves, submitted to Department of Justice
3. Submitted to President for signature
4. Published in the Federal Register

Question 31

What did EO 12866 require from executive agencies?

Answer 31

Requires executive agencies to do a cost/benefit analysis on all proposed regulations

Requires agencies to analyze alternatives including the possibility of not regulating

Question 32

Where there is congressional silence in a statute about whether president has power to issue an EO, the three views are:

1. Traditional view
2. Unitary Executive View
3. Kagan View

What do these views say about presidents power to issue EO to independent and executive agencies?

Answer 32

1. Traditional view: president has no power to issue EO to independent or executive agencies b/c all power was delegated to the agency
2. Unitary: President has power to issue Eo to both indp and executive agencies bc his “Take Care” power is expansive, and uniform control by President is better
3. Kagan: if executive agency, Pres can issue EO because removability at will implies congressional judgment that the agency should be responsive to the president.
   If an Independent agency, is it presumed the president cannot issue an EO bc limits on removability implies congressional judgment that ind agencies should be isolated from the president

Question 33

Will courts enforce an EO when it contradicts the organic statute?

Answer 33

No, an EO cannot override a clear statutory duty