Separation of Powers - Executive Flashcards
Federalist No. 70
Hamilton wrote in defense of an energetic executive branch, arguing that vigor in the executive is essential to protection of the state, steady administration of laws, protection of property, and security of liberty.
UNITY
- There are 4 key ingredients to a strong executive - unity, duration, adequate provision for support, competent powers - but Hamilton only discusses unity here.
- Avoids the difficulties of differences of opinions, personal animosities, etc.
- Allows the executive to be held accountable for wrongdoings and not hide behind excuses.
- Keeps the executive in check by restraints of public opinion and ease of discovering misconduct.
LEGISLATURE
*While the complaints about a multi-person executive may be applied to the legislature, it’s different–legislature’s job is to be deliberate and thoughtful, rather than efficient.
Appointment Power
Article II, sct. 2 grants the president appointment powers. It also implies a reciprocal removal power, perhaps along the same guidelines for appointment.
PRINCIPAL OFFICERS
- President nominates; Senate gives advice and consent.
- Congress can’t legislate around the prescribed appointment–all principal officers must be appointed accordingly.
- Cabinet secretaries, ambassadors, SCOTUS, etc.
INFERIOR OFFICERS
- Congress may vest appointment entirely outside of its realm–president, courts, etc.
- Lots of debate about how to define an inferior officer–see Morrison v. Olson, for example.
RECESS APPOINTMENTS
- Allows the President to fill vacancies that “may happen” during the recess of Senate by granting short-term commissions that expire at the end of Senate’s next session.
- Debate over what counts as a recess; whether vacancies have to emerge DURING the recess–see NLRB v. Noel Canning, for example.
POLICY
- We want Senate confirmation to protect against nepotism.
- We don’t want Senate to have all the power, though, because they could undermine president’s interests.
- Appointment process for federal judges allows for a more knowledgeable consideration of candidates.
Buckley v. Valeo (1976)
Principal Officers must always be nominated by the President and confirmed by Senate–no room for Congress to legislate around it.
FACTS:
- Congress created the FEC, which included six members, four of which were appointed by Congress.
- Commission had power to conduct civil litigation, make rules, determine eligibility for funds, etc.
PER CURIAM MAJORITY:
- Purposivist - Noscitur a sociis implies that the non-exhaustive list of principal officers is bound together by the ability to enact rules impacting the liberty and property rights of private citizens; thus, FEC is composed of principal officers.
- Textualist - Because FEC is principal, they must be appointed in line with the text of Article II, sct. 2.
NLRB v. Noel Canning (2014)
The President can only fill recess appointments during official recesses (both inter- and intra-session).
FACTS
- Obama nominated three people to fill long-empty seats during a weird quasi-recess where there were only absences for three or four days at a time.
- Noel Canning sued, arguing that the recess appointment power only applied to (a) traditional inter-session recesses and (b) vacancies that arose during the recess.
BREYER’S MAJORITY
*Historical Practice - Both inter- and intra- count, and “vacancies” refers to empty seats both before and during recesses. HOWEVER, the pro-forma presence of Congress made the recess too short to spur a valid exercise of the power.
SCALIA’S DISSENT
*Purposivism - Clause was written when Senate had long recesses during the farming months, where it was really difficult to get in touch with all the members, let alone convene them. Today, there’s no excuse for appointing during short recesses, especially given the ease of communication.
Removal Power & the Decision of 1789
THE REMOVAL POWER
- Nowhere within the text of the Constitution.
- This has always been an area where legislative and executive powers clash, leading to tumult.
THE DECISION OF 1789
- In one of their earliest debates, Congress discussed whether the President has the power to remove in the Vesting Clause of Article II, despite lack of enumeration.
- Ultimately granted the removal power to the President regarding the specific act in question; lots of debate over time about whether that solidified the President’s removal power in general.
- One of the rare times in history when Congress sided with the Executive in a debate about where to draw the line between legislative and executive powers.
- MADISON prevailed, arguing that the president alone could remove.
- BLAND argued that the president and senate had to act together. (see Tenure of Office Act, where Johnson was prohibited from unilaterally removing Lincoln appointees)
- SMITH argued that Congress alone had the removal power.
- LAURANCE argued that the president could remove, but only in instances oof gross misconduct or dereliction of duty (see SCOTUS’s response to Humphrey’s Executor).
Myers v. United States (1926)
The President may unilaterally remove an inferior officer.
FACTS
- A Congressional Act said that the President could only remove a postmaster of the first class with advice and consent of Senate.
- Myers, a postmaster of the first class, was always drunk and bad at his job, so the president unilaterally removed him.
TAFT’S MAJORITY
- Past Practice - The First Congress’s outcome on the Decision of 1789 grants the president this power.
- Policy - to faithfully execute the laws, the President must be able to remove those doing a bad job of helping him execute those laws. Further, he’s in the best position to decide if someone’s unfit.
- Textualist - Appointments Clause aptly only grants Senate power to confirm, not remove.
BRANDEIS’S DISSENT
*Purposivist - Congress has the power to create this office; it should have the power to remove.
Humphrey’s Executor (1935)
Added nuance to Myers, holding that the President’s removal power over certain officers of independent agencies (quasi-legislative) is restricted to “just cause,” as Laurance, et al., discussed in 1789.
BACKGROUND
*FTC is an independent agency with quasi-legislative/judicial/executive functions: can create rules, bring enforcement actions, employ administrative judges.
FACTS
*FDR fired Humphrey, ardent conservative and commissioner of the FTC, in violation of a statute that only allowed for removal based on dereliction of duties, etc.
SUTHERLAND’S MAJORITY
*Structuralist - Unconstitutional for FDR to fire Humphrey unilaterally, and the law restricting his removal power was constitutional, because the FTC is an independent agency with legislative function (taking it outside of clear executive power). Myers, on the other hand, was a solely executive officer.
SGC NOTES:
*There’s nothing in the Constitution that allows for agencies that pull powers from different branches–does this harm the separation of powers?
United States v. Cox (5th Circuit 1965)
Under the Take Care Clause in Article II, the executive branch has full power and discretion over prosecution. A judge may not hold a US attorney in contempt for choosing not to indict.
FACTS
- In the South in the 1960s, two black men were accused of lying while trying to register to vote.
- Grand jury requested indictment, but US attorney refused.
- Judge held attorney in contempt.
JONES’S MAJORITY
*Textualist - The Executive’s vast powers in Article II mean that it has full power and discretion over prosecution. The judiciary has no say.
WISDOM’S CONCURRENCE (SGC likes it best)
*The prosecution has a duty to collect evidence on both sides and prevent baseless accusation. After this analysis, it may conclude that carrying out a trial would hurt more than it helps (e.g. here, it would hurt African American voting efforts). Judiciary can’t coerce the executive.
Adams v. Richardson (D.C. Circuit 1973)
A court may constitutionally order the executive branch to execute a statute–while agencies DO have a lot of leeway in enforcement, they can’t simply refuse to enforce.
FACTS
- Secretary of Health, Education, and Welfare (HEW) wasn’t enforcing the Civil Rights Act with respect to educational institutions.
- HEW claimed that this was non-justiciable and open to agency discretion.
PER CURIAM MAJORITY
*Executive has clear legal duty under the Take Care Clause that laws are faithfully executed. Executive needs to enforce the Civil Rights Act of 1964, as justified by the 14th Amendment’s Equal Protection Clause, and restrict funding to segregated public schools.
Morrison v. Olson (1988)
Congress may vest in a court the power to create an independent prosecutor, and because an independent prosecutor is inferior officer, she is not subject to removal at will by the President.
BACKGROUND
- In the aftermath of Watergate, Nixon’s Attorney General hired a special prosecutor to investigate.
- Nixon freaked out and, in what later became known as the “Saturday Night Massacre,” ultimately appointed our boy Robert Bork to fire the special prosecutor, Archibald Cox.
- Congress didn’t want anything like this to ever happen again, so it created a system of temporary independent special prosecutors via the Ethics in Government Act (EIGA).
- Reagan’s administration challenged the constitutionality of EIGA, arguing that it vested the power to prosecute, a core executive power, in an unremovable official.
FACTS
- Assistant AG Theodore Olson was accused of illegally withholding documents from Congress, so Alexia Morrison was appointed as special counsel under EIGA to investigate.
- Olson claimed that Congress couldn’t vest special counsels’ appointments to the courts, since they’re principal officers. He also claimed that their role within the executive granted the President unilateral ability to fire them.
REHNQUIST’S MAJORITY
- Textual - [APPOINTMENT] Appointments clause is divided into principal and inferior officers, of which an independent counsel is inferior, since (1) the Attorney General can fire her, (2) she’s only empowered to perform narrow duties, and (3) her office is limited in jurisdiction and tenure. Since she’s inferior, Congress can grant appointment powers to the court under Article II, sct. 2.
- Policy - [REMOVAL] Since she’s an independent agent, Humphrey’s Executor applies–AG can only fire her for cause. Presidents don’t need to control inferior officers not central to the function of the executive, anyway.
- Hints here that Rehnquist thinks this is a political question and wants to stay out.
SCALIA’S DISSENT
- Textualist - [APPOINTMENT] Morrison isn’t inferior because she doesn’t really have a boss. Plus, given that ALL executive power is vested in the President, removing some and removing the person wielding that power from his control is unconstitutional.
- Purposive [REMOVAL] - Special prosecutor is WHOLLY executive, since she’s concerned squarely with prosecution. Framers wanted separation of powers; this clearly muddies the water.
SGC NOTES:
- Having a superior doesn’t mean you’re inferior.
- Better solution is to have a House Committee on Impeachment and/or special prosecutors selected from existing U.S. Attorney pools.
AFTERWARD
*EIGA expired after Ken Starr! Now, the doctrine governing special prosecutors is much more nebulous and muddied (as evidenced by the Mueller investigation, where Trump threatened to fire him every other day).
The Neutrality Controversy
BACKGROUND
- The US was bound to France by a Revolutionary-era treaty; when the French Revolution broke out and England declared war on France, Washington was faced with the difficulty of whether the US was bound to help France against England.
- The power to declare neutrality isn’t granted to any branch within the text of the Constitution.
POSITIONS
- Madison wrote as Helvidius in favor of American intervention (he loved France and thought that the French Revolution was a net positive).
- Hamilton wrote as Pacificus in favor of neutrality (he was afraid of how radical the revolutionary ideals were in France).
OUTCOME
*Washington ultimately found that the US wasn’t bound to help France, given that they’d signed a treaty with the now-deposed monarchy, not the newly-empowered revolutionaries.
George Washington’s Proclamation of Neutrality
1793 - Washington declared neutrality, saying that the treaty was void after the regime change and giving instructions to prosecutors to prosecute anyone found to not be neutral (helping France, inciting war, etc.)
Pacificus No. 1
Hamilton wrote IN FAVOR OF NEUTRALITY as Pacificus.
RATIONALE
- President is the best person to preserve the peace, given the sweeping grant of power–legislative can make, not interpret, treaties; judiciary can only interpret laws.
- President’s powers are rooted in Commander-in-Chief, Treaty-Making, and Take Care.
- While Congress has the power to declare war, you can’t have both war and peace in the same branch!
- President can judge for himself the meaning of the laws.
Helvidius Nos. 1 & 2
Madison wrote AGAINST NEUTRALITY as Helvidius.
RATIONALE
- President should support France and stand by our treaties in order to repay France for its role in the Revolution.
- Congress can declare war, so they should declare peace, especially since it kind of involves changing laws to reflect war-time/peace-time context.
- If both Congress and President could equally judge whether the Country is at war, they could decide differently, which would lead to instability.
Zivotovsky v. Kerry (2015)
Article II, sct. 3 gives the Executive exclusive power to formally recognize foreign sovereignty.
FACTS
- When American parents had children in Jerusalem, the Executive didn’t specify country of birth on their passports.
- Congress passed a statute requiring that the passports say “Jerusalem, Israel,” but the President didn’t want to take a position on who Jerusalem belonged to.
QUESTION
Does the President have exclusive power to recognize foreign sovereigns? If so, can Congress command the President to issue passports in opposition to his statement?
KENNEDY’S MAJORITY
- Textual - President can recognize foreign sovereigns based on the Reception Clause (Article II, sct. 3). Power to make treaties and nominate/appoint ambassadors support this power. SGC SAYS…Kennedy is right but should have relied on Vesting Clause, rather than Reception.
- Historical - The Framers regarded receiving an ambassador as recognizing a foreign sovereign, so the powers were closely linked, despite lack of direct text in Constitution.
- Policy - President is better at engaging with diplomatic contacts and making fast, clear decisions. While Congress can declare war, regulate commerce, and make naturalization rules, it may not contradict the president’s exclusive authority to recognize legitimate states and governments, including territorial boundaries.
THOMAS’S CONCURRENCE
*Structuralism - President is granted this power under the broad vesting clause in Article II. Congress, on the other hand, has limited, enumerated powers, none of which include recognizing territorial boundaries or the like.
ROBERTS’S DISSENT
- Past Precedent - Under Jackson’s Youngstown concurrence, executive can only ignore the will of Congress when the Constitution grants him a really clear power, which it doesn’t here.
- Structuralism - Reception Clause is in list of duties, not powers, granted to the President.
- Textualism - Passports are for ID, not formal recognition of sovereignty–this is under Congress’s naturalization power.
SCALIA’S DISSENT
*Textualism - This is under naturalization power, which grants Congress the broad ability to grant citizenship to those born abroad.
