Legislative Power/Executive Power/Administrative Agencies Flashcards
T/F: To be an exercise of legislative power, an action must be legislative in its purpose and effect
True
(INS v. Chada)
T/F: The House of Representatives alone was given the power to initiate impeachments
True
Art. I, §2, Cl, 6
T/F: The House of Representatives alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial
False - Its the Senate Alone
Art. I, §3, cl 6
T/F: The Senate alone was given final unreviewable power to approve or to disapprove presidential appointments
True
Art II, §2, cl 2
T/F: The Senate alone was given unreviewable power to ratify treaties negotiated by the President
True
Art II, §2 cl 2
How are Agencies created?
By Congress via Statute
T/F: Agencies exercise executive power by enforcing policies set by congress in the law
True
T/F: Agencies are given a wide variety of powers that only resemble executive authority
False
Agencies are given a wide variety of powers that resemble all three constitutionally mandated branches of government
(1) Investigate violations of the law (executive)
(2) Resolve disputes and issue orders (judicial)
(3) Promulgate regulations that read like statutes and have the effect of law (legislative)
T/F: Appointment is NOT mentioned in the text of Article II
False - Removal is NOT mentioned (Appointment is)
Article II, Section 2, Cl 2
T/F: Removal is mentioned in the text of Article II
False - Removal is NOT mentioned (Appointment is)
In Congress’ role of “Appointment,” what is required from the Senate in appointing superior officers?
(2 things)
Advice and Consent
T/F: The president appoints ambassadors, federal judges, and “principal” officers (with the advice and consent of the Senate)
True
Lucia v. SEC put previous cases “tests” together to create a framework for determining who counts as an “Officer of the United States”
What is the Lucia framework?
Context: Lucia’s case was heard by an ALJ, who was not appointed by the President, a court of law, or the head of a department but rather by SEC staff members. The issue was whether an ALJ counts as an officer.
(1) A person occupying a “continuing or permanent” position established by law (not temporary)
AND
(2) They must exercise “significant authority” pursuant to federal law
What is the difference between a “Principle Officer” and an “Inferior Officer” in terms of appointment?
Principle Officers must be appointed by the President with the advice and consent of the Senate
Inferior Officers may be appointed by the President, a court of law, or the head of a department
T/F: An inferior officer must be directed and supervised at some level by others who were appointed by Presidential nomination with advice and consent of the Senate
True
Edmond case
T/F: An inferior officer may issue final decisions on behalf of the executive branch
False
United States v. Arthrex, Inc (2021)
An inferior officer may NOT issue final decisions on behalf of the executive branch
Can Congress pass a law telling the President to remove an executive branch official, or fire them themselves?
What case provides the answer?
No
Myers v. United States
Chief Justice Taft held that article II gave the President sole power of removal of executive branch officials
What exception to the President’s power to remove is described in Morrison v. Olson?
Congress can provide tenure protections to certain inferior officers with narrowly defined duties
T/F: It is a violation of the separation-of-powers doctrine for an administrative agency to be headed by a single director not removable by the president at will
True
Seila Law v. CFPB (2020)
Congress established the Consumer Financial Protection Bureau and established that it would be led by a single director that serves a longer term than president and cannot be removed by president w/o inefficiency, neglect, or malfeasance
T/F: As a general matter, the Constitution gives the President the authority to remove those who assist him in carrying out his duties
True
Free Enterprise Fund v. PCAOB
T/F: The Constitution permits Congress to retain an active role in supervising officers tasked with executing the laws of the United States
False
Bowsher v. Synar (1986)
By placing responsibility for the execution of the “Balanced Budget and Emergency Deficit Control Act” in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function (violating separation of powers)
What is the theory of the Unitary Executive? (2 parts - relates to removal and separation of powers)
(1) The President must have complete authority to fire any officer in the executive branch (intra-executive)
(2) The executive, in the exercise of executive power, cannot be interfered with by the other two branches of government
Why did Nixon’s claim of privilege (immunity) fail in United States v. Nixon (1974)?
When the communications in question do not concern military, diplomatic, or sensitive national security secrets, executive privilege may be overruled due to the constitution’s need to produce all relevant evidence in a criminal case
A presidential claim of privilege asserting only a generalized interest in confidentiality is not sufficient to overcome the judicial interest in producing all relevant evidence in a criminal case
Nixon couldn’t point to any valid reasons
Under what circumstances are a President’s acts granted immunity from civil litigation?
When the acts are “official acts” done while in office
Clinton v. Jones (1997)
The United States Constitution does not grant the President of the United States immunity from civil litigation involving actions committed before entering office
Presidents can get immunity for damages arising from “official acts” while in office
In Trump v. Mazars, we learned that Congress has NO enumerated constitutional power to conduct investigations or issue subpoenas, but power in those categories could be justified (subject to limitations) if:
(3 things)
(1) Congressional subpoena is related to a legitimate legislative purpose
(2) Its not law enforcement (that’s executive and judiciary power) - Cannot use subpoenas to “try” someone - No “general” power to inquire into private affairs and compel disclosures - No congressional power to expose for the sake of exposure
(3) Recipients of legislative subpoenas retain constitutional rights throughout the course of the investigation (attorney client privilege, executive privilege)
