Separation of Powers

Question 1

What are the four main tension points between executive discretion and McCulloch “ours is a nation of law”?

Answer 1

1) Amenability of the President and state executives to orders issued by the judiciary
2) Congress’s ability to limit presidential authority to execute the laws
3) The possibility that the President can prevent others from inquiring into the executive operation
4) Personal amenability of the President to the legal process

Question 2

What is the status of presidential immunity from the legal process?

Answer 2

1) No enumerated immunity in the Constitution
2) President does have broad immunity from civil damages for official acts
3) The Court overall is not sympathetic to the notion that the President should be immune from criminal indictment or civil process in his personal capacity

Question 3

What are the two ways to determine whether an action is violative of the separation of powers?

Answer 3

1) Chadha: Identify the body then identify the relevant procedures required to complete the task, and whether the body is in compliance

2) Bowsher: Identify the nature of the action then identify if the actor comes from the related branch (via appointment and removal, usually)

Question 4

What is the generally cited test for determining whether a particular act is within presidential authority?

Answer 4

J. Jackson, Youngstown Sheet

1) Max authority: President acts pursuant to express or implied authorization

2) Zone of twilight: President and Congress have concurrent authority and congressional inertia enables the President to act on his own responsibility

3) Minimum authority: The President takes measure incompatible with express or implied will of Congress

Question 5

What is the non-delegation doctrine?

Answer 5

While Congress may not delegate its lawmaking authority (Art. I Sec. 8), it may delegate rulemaking to the executive so long as it provides the executive with an “intelligible principle” by which the executive can make those rules

Question 6

What is the process for determining whether an administrative body/agency violates the separation of powers doctrine?

Answer 6

The baseline is Myers: The president retains at-will removal for executive officials

Exception 1: Humphrey’s Executor gives allows for-cause removal protection for quasi-leg or quasi-judicial agencies

Exception 2: Morrison allows for-cause removal protection to inferior officers with limited duties and no policymaking or administrative authority

Question 7

What are the factors that go into identifying a quasi-leg or quasi-jud body?

Answer 7

• Multimember body of experts
• Balanced along partisan lines
• Performs legislation/judicial functions
• Not said to exercise any executive power (likely no longer accurate)

Question 8

Free Enterprise Fund

Answer 8

For-cause removal protections for inferior officers cannot be double layered

Question 9

Chadha rule on Congress vesting discretion

Answer 9

Congress cannot vest the Executive with some discretion and keep some; either they vest all or none of it

Question 10

How do you determine whether an executive officer is inferior or principal for the purposes of Morrison?

Answer 10

• Appointed/removed by a principal officer (e.g., AG)?
• Empowered only to perform certain, limited duties
• Limited in jurisdiction
• Limited in tenure