Executive Power

Question 1

What is the formalistic approach to separation of powers?

Answer 1

Interpreting the constitution’s requirements as literally as possible.

Question 2

What is the core function test?

Answer 2

A “functional approach” test the Court uses to approve the commingling of powers as long as one branch’s exercise of a power does not jeopardize the core function of another branch.

Question 3

What test for separation of powers did the Court formulate in J.W. Hampton Jr Co?

Answer 3

The intelligible principle test. Agencies still must make decisions consistent with the general policies defined by Congress.

Question 4

What are the only two times that a delegation of power has failed the intelligible principle test?

Answer 4

Panama Refining and Schecter Poultry, both in 1935.

Question 5

Can Congress delegate power to private entities?

Answer 5

Yes, as long as they are subject to federal oversight. Sunshine Anthracite.

Question 6

Can you subject an entity to regulation by an entity with a competing financial interest?

Answer 6

No. Violative of due process. Think Amtrak case - D.C.C.

Question 7

How does Oregon enforce nondelegation?

Answer 7

The important consideration is not whether the statute delegating power expresses standards, but whether the procedure established for the exercise furnishes adequate safeguards to those affected by administrative action.

Question 8

Who can delegate judicial power?

Answer 8

Congress.

Question 9

Are congressional rulemaking vetoes permitted?

Answer 9

Nope. Unconstitutional.

Question 10

What is the different between a joint resolution and a bill?

Answer 10

Resolutions are not subject to amendment.

Question 11

What is the Congressional Review Act?

Answer 11

Basically takes all the submission requirements from EO 12286, Reg-Flex, and Unfunded Mandates Act and requires they be sent to Congress and the Comptroller General, too. Also requires delay in effect of such rules as are submitted. No judicial review.

Question 12

What limits did Buckley v. Valeo point on appointment of executive officers?

Answer 12

None—just reiterated that Congress may not appoint executive officers or officers performing executive functions.

Question 13

Who can petition for certiorari on behalf of agencies?

Answer 13

Only the solicitor general.

Question 14

Can congress ppl serve as ex officio members of executive agency bodies?

Answer 14

In D.C.C., no. Influence limited to advice.

Question 15

What is an executive officer?

Answer 15

Anyone who “exercises significant authority pursuant to the united states.” Buckley

Question 16

What are some of the characteristics of an inferior officer?

Answer 16

1) Position created by law and duties/salary/appointment specified by statute.
2) Have significant authority like conducting trials, ruling on admissibility of evidence, can enforce compliance with discovery orders.
3) Exercise significant discretion.
Freytag
4) Work is (must be) directed and supervised at some level by Principal Officer. Edmond

Question 16

What are some of the characteristics of an inferior officer?

Answer 16

1) Position created by law and duties/salary/appointment specified by statute.
2) Have significant authority like conducting trials, ruling on admissibility of evidence, can enforce compliance with discovery orders.
3) Exercise significant discretion.
Freytag
4) Work is (must be) directed and supervised at some level by Principal Officer. Edmond

Question 17

When can the President make recess appointments?

Answer 17

1) Vacancies that arise before a recess or during a recess, including inter and intra-session recesses, but:
a) Intra-session recess is only a recess if it is at least ten days.

Question 18

What is the Vacancies Act?

Answer 18

States that the first assistant to a principal officer automatically becomes acting in case of a vacancy unless the President uses her authority under the Act to name someone else. Time limit on how long the position can be filled in this way. The Act vacates all action taken be a person serving under the Act who does not meet its requirements.

Question 19

Who has the removal power?

Answer 19

For executive officers, the President. Myers. For quasi legislative and judicial, Congress. Humphreys.

Question 20

What was the holding of Free Enterprise Fund v. PCAOB?

Answer 20

Can’t insulate an inferior officer from removal by a principal officer also insulated from removal by the Prez.

Question 21

What was the holding of Seila Law v. CFPB?

Answer 21

An executive agency may not be headed by a single director wielding significant executive power that is only removable for cause by the Prez.