Legislative Power/Executive Power/Administrative Agencies

Question 1

T/F: To be an exercise of legislative power, an action must be legislative in its purpose and effect

Answer 1

True

(INS v. Chada)

Question 2

T/F: The House of Representatives alone was given the power to initiate impeachments

Answer 2

True

Art. I, §2, Cl, 6

Question 3

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

Answer 3

False - Its the Senate Alone

Art. I, §3, cl 6

Question 4

T/F: The Senate alone was given final unreviewable power to approve or to disapprove presidential appointments

Answer 4

True

Art II, §2, cl 2

Question 5

T/F: The Senate alone was given unreviewable power to ratify treaties negotiated by the President

Answer 5

True

Art II, §2 cl 2

Question 6

How are Agencies created?

Answer 6

By Congress via Statute

Question 7

T/F: Agencies exercise executive power by enforcing policies set by congress in the law

Answer 7

True

Question 8

T/F: Agencies are given a wide variety of powers that only resemble executive authority

Answer 8

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)

Question 9

T/F: Appointment is NOT mentioned in the text of Article II

Answer 9

False - Removal is NOT mentioned (Appointment is)

Article II, Section 2, Cl 2

Question 10

T/F: Removal is mentioned in the text of Article II

Answer 10

False - Removal is NOT mentioned (Appointment is)

Question 11

In Congress’ role of “Appointment,” what is required from the Senate in appointing superior officers?
(2 things)

Answer 11

Advice and Consent

Question 12

T/F: The president appoints ambassadors, federal judges, and “principal” officers (with the advice and consent of the Senate)

Answer 12

True

Question 13

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.

Answer 13

(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

Question 14

What is the difference between a “Principle Officer” and an “Inferior Officer” in terms of appointment?

Answer 14

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

Question 15

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

Answer 15

True

Edmond case

Question 16

T/F: An inferior officer may issue final decisions on behalf of the executive branch

Answer 16

False

United States v. Arthrex, Inc (2021)
An inferior officer may NOT issue final decisions on behalf of the executive branch

Question 17

Can Congress pass a law telling the President to remove an executive branch official, or fire them themselves?

What case provides the answer?

Answer 17

No

Myers v. United States
Chief Justice Taft held that article II gave the President sole power of removal of executive branch officials

Question 18

What exception to the President’s power to remove is described in Morrison v. Olson?

Answer 18

Congress can provide tenure protections to certain inferior officers with narrowly defined duties

Question 19

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

Answer 19

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

Question 20

T/F: As a general matter, the Constitution gives the President the authority to remove those who assist him in carrying out his duties

Answer 20

True

Free Enterprise Fund v. PCAOB

Question 21

T/F: The Constitution permits Congress to retain an active role in supervising officers tasked with executing the laws of the United States

Answer 21

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)

Question 22

What is the theory of the Unitary Executive? (2 parts - relates to removal and separation of powers)

Answer 22

(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

Question 23

Why did Nixon’s claim of privilege (immunity) fail in United States v. Nixon (1974)?

Answer 23

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

Question 24

Under what circumstances are a President’s acts granted immunity from civil litigation?

Answer 24

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

Question 25

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)

Answer 25

(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)