Removals

Question 1

Removals are ___ in the Consti

Answer 1

NOT

Question 2

____ probably implies removal power

Answer 2

TK Clause

Question 3

Why does TK Clause probably imply removal power

Answer 3

without it Pres couldn’t execute laws (couldn’t remove corrupt/incompetent officers)

Question 4

First interpretation of Removals

Answer 4

Vesting and TK Clause imply need for unfettered Pres removal power

Question 5

Second interpretation of Removals

Answer 5

Role of Senate in approval implies role in removal

Question 6

Third interpretation of removals

Answer 6

No removal power in Consti, if wanted it they would’ve included (Myers brandeis dissent)

Question 7

It is agreed that Pres has unfettered power to remove ___

Answer 7

Exec officers (Myers, Scalia)

Question 8

Power to remove Exec officers is implied from ___

Answer 8

Exec vesting (entire Exec power to Pres alone Scalia Morrison dissent) + TK (removal necessary for effective supervision)

Question 9

The decision of 1789 was ___ by Myers

Answer 9

affirmed

Question 10

Power to remove exec officers bolstered by ____ arguments

Answer 10

unity + energy

Question 11

Humprehy’s says that Cong can create ____

Answer 11

independent agencies led by principal officers with for cause protection

Question 12

Seila says that Cong. can’t create ___

Answer 12

single-person led agency with for cause protection

Question 13

Morrison says Cong. can create protection for ____ only if ___

Answer 13

certain inferior officers with defined duties, doesn’t impede Pres ability to perform TK duty

Question 14

Unlike Humprehy’s, Morrison doesn’t turn on ___

Answer 14

whether official purely executive

Question 15

Free Enterprise says can’t ___

Answer 15

create two layers of officials removable by Pres only for good cause

Question 16

Madison argued that Pres should be able to ___ because it was ___

Answer 16

unilaterally remove cabinet secretaries, quintessentially exec

Question 17

Myers held that Pres has ___

Answer 17

sole power to remove officers including inferiors

Question 18

Myers facts

Answer 18

postmaster fired under statute requiring consent of Senate for removal

Question 19

Reasoning behind Myers

Answer 19

decision of 1789 precedent + subsequent Pres not acquiesced

Question 20

Myers held that Pres power to remove is ___

Answer 20

broad

Question 21

Brandeis Myer dissent

Answer 21

this is limitation on Cong to control tenure (power in Consti to create officers and create tenure)

Question 22

Brandeis Myer dissent says decision of 1789 only __

Answer 22

applicable to “high” offices

Question 23

Brandeis Myer dissent says TK clause ___

Answer 23

doesn’t automatically give Pres removal power

Question 24

Humprehy’s executor principle

Answer 24

Pres doesn’t have unlimited power of removal

Question 25

humprehy's facts

Answer 25

Pres fired Humprehy from FTC which was established by Cong. and had only quasi leg and judicial roles

Question 26

Humphrey holding

Answer 26

Myers doesn't control because FTC not arm of exec

Question 27

Humphrey held that the FTC was created by Cong. to ____ so removal dictated by ___

Answer 27

effect leg policies, Cong. statute

Question 28

Humphrey held that Cong has the authority to create agencies and order them ___

Answer 28

to act independent of the exec`

Question 29

Humprehy implies that this should be done to ___

Answer 29

shield FTC from politics

Question 30

HAM criticism of Humprehy's

Answer 30

what is quasi jud/leg power, at odds with nondelegation, clearly FTC has exec power (it prosecutes), way to insulate knowledge class, many consider this logic weak

Question 31

Why does Seila not overrule Humprehy

Answer 31

distinguish between single and multi headed agency

Question 32

Seila emphasized that the CFPB has signficant ___

Answer 32

enforcement power --> seek big money penalties against private parties in fed court

Question 33

Seila says that in Humprehy;s the officials were ___

Answer 33

partisan balanced, staggered terms, no exec power

Question 34

Morrison principle

Answer 34

Cong. can restrict power of principal officers to remove their subordinates

Question 35

What does suspension mean

Answer 35

suspend a law generally

Question 36

What is dispensement

Answer 36

suspend law for particular person or group

Question 37

How is dispensement different from a pardon

Answer 37

prospective rather than retrospective

Question 38

Suspension/Dispensement Qs really about ___

Answer 38

how much discretion Exec has not to enforce the law

Question 39

Ham thinks that there is no discretionary duty to ___

Answer 39

choose not to enforce (TK)

Question 40

Ham thinks there is a duty to enforce BUT ___

Answer 40

may prioritize one thing over another

Question 41

Ham thinks duty to enforce goes as far to ___

Answer 41

reject all suspending/dispensement

Question 42

The word faithfully in TK leaves ___

Answer 42

ambiguous how far duty to enforce extends

Question 43

Ham thinks _____ seem close to S/D and violate TK

Answer 43

letters of formal exception (admin waivers, deferred action)

Question 44

What is an admin waiver

Answer 44

letter issued by agency saying person excused from compliance

Question 45

Admin waivers are typically ___ and issued when ___

Answer 45

private, when in context law so onerous that difficult/impossible to comply

Question 46

Admin waivers allow for ___

Answer 46

flexibility, especially temporarily

Question 47

Admin waivers typically go to ___

Answer 47

better connected corps

Question 48

3 reasons Ham thinks admin waivers uncon

Answer 48

(1) dispensation since de-legislating (violate TK) (2) violate leg vesting (leg power can't be delegated) (3) violate judicial vest (precludes court from saying laws don't apply to certain people)

Question 49

Costs to admin waivers

Answer 49

(1) encourages more constraining reg because know can give them out (2) unequal treatment (3) unfair (4) corruption (5) anti-market (6) anti-democratic

Question 50

Cox holding

Answer 50

prosecutorial discretion of exec smt courts won't mess with

Question 51

Cox reasoning

Answer 51

inevitable because can't prosecute every crime

Question 52

Why does Morrison not fit with rest of doctrine

Answer 52

shifts discretion to independent counsel (not removable by Pres)

Question 53

Thompson Memo facts

Answer 53

deferred action saying won't prosecute, will openly tolerate alien continued presence subject to agency revocation

Question 54

First principles of Thompson Memo

Answer 54

enforcement decisions should reflect factors in [enforcing agency's] expertise (resources at present,best use of resources)

Question 55

Second principle of Thompson Memo

Answer 55

(2) can't use enforcement decisions to rewrite laws to match policy preferences

Question 56

Third principle of Thompson Memo

Answer 56

(3) can't consciously and expressly adopt policy so extreme as to amount to abdication of statutory responsibilities

Question 57

HAM thinks third principle of Thompson is kind of ___

Answer 57

scienter requirement

Question 58

HAM problem with third principle of Thompson

Answer 58

govt can get away with abandoning law if in good faith

Question 59

Fourth principle of Thompson

Answer 59

Should be case by case (generalizing about categories of cases won't prosecute sounds like dispensation)

Question 60

Thompson memo not against general policy so long as ___

Answer 60

framework for individual decisions

Question 61

Thompson memo says policy doesn't fit with principles for three reasons

Answer 61

(1) not decision not to prosecute, is decision to openly tolerate (2) carries with it benefits in addition to non-enforcement (3) set forth eligibility criteria and then have individuals apply

Question 62

HAM thinks Thompson policy dispensation for three reasons

Answer 62

(1) being told ahead of time no action will be taken against you (2) altering legislation by altering who and how it affects, violate SoP (3) not about deprioritization because brazen action saying some people don't formally have to obey the law

Question 63

Morrison facts

Answer 63

Act after Nixon created temporary independent counsels (IC), once AG completes investigation must report to 3 judge panel which then appoints IC and defines prosecutorial Jdx

Question 64

Morrison holding

Answer 64

IC is inferior officer (Jdx limited, tenure limited, inferior to AG because can be removed by AG, empowered with limited duties) so fits Appt Clause

Question 65

Morrison says good cause doesn't interfere with Pres ability because ___

Answer 65

(1) allows enough authority to ensure still competently performing (2) AG retains power to initiate and define scope of investigation

Question 66

Morrison Scalia dissent three complaints

Answer 66

(1) unified exec essential to SoP (2) not really inferior because subordinate to no one (3) Majority no real test for how much interference with Pres is too much

Question 67

Scalia thinks Morrison act upsets unity of exec because __

Answer 67

Act divests Pres of prosecutorial functions (2) replace unity of Exec with balancing test

Question 68

Ham agrees with Scalia that the IC is ___

Answer 68

not really inferior because not responsible to higher officer

Question 69

Ham thinks due process problem with IC because ____

Answer 69

once IC appointed and start spending money incentivized to keep prosecuting

Question 70

Ham thinks IC robs ___

Answer 70

exec of duty to take care