Separation Of Powers Outline

SEPARATION OF POWERS

1. LEGISLATIVE POWER OVER AGENCIES

   1. Ex Ante—Appointment of executive personnel.

      1. Senate confirmation hearings of people nominated by President (pursuant to Art. II power).

      2. Congress does not have the power to appoint executive officials (Buckley).

         1. Executive officials have the “ultimate authority” to enforce a law after it has left Congress’ hands against persons who are not dealing with Congress in any way (no relevance to Congress’ internal affairs).

      3. Buckley v. Valeo (indirect method of enforcing non-delegation doctrine—encourages Congress to think clearly and delegate with specificity because they appoint officers ex ante).

         1. Facts: The Federal Election Campaign Act set standards for election contributions and created an 8 member Federal Election Commission (FEC). The FEC was empowered to make rules necessary to carry out the Act, to render advisory opinions with respect to activities possibly violating the Act, to institute civil actions, disqualify individuals from future candidacies for failure to file reports. The FEC was composed of 2 members appointed by the Speaker of the House, 2 members appointed by the President of the Senate, and 2 members appointed by the President. These 6 voting members had to be confirmed by a majority of both houses of Congress.

         2. Applicable Statutory Language: Art. II, Sec 2 provides, “…he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

         3. Issue: Whether the fact that Congress gave the FEC wide-ranging rulemaking and enforcement powers (making them “officers” of the US) means that Congress is precluded from vesting in itself the authority to appoint them under the separation of powers doctrine.

         4. Holding: Congress may, under the N&P Clause, create “offices” in the generic sense and provide a method of appointment for those “offices” as it so chooses. However, Congress is bound by Art. II, Sec. 2 and cannot appoint “officers of the United States.”

         5. Text

            1. The Constitution very clearly divides all Officers of the United States (any appointee exercising significant authority pursuant to the laws of the US) into two classes:

               1. The primary class requires nomination by the President and confirmation by the Senate.

               2. With regard to inferior officers, Congress may by law vest their appointment in the President alone, courts of law, or the heads of departments.

                  1. Members of the FEC are at the very least “inferior officers” within the meaning of Art. II, Sec. 2 because they have broad enforcement (power to file lawsuits) and rulemaking power.

                  2. If the FEC’s power was limited to its informational/advisory functions, then its members would not be “officers of the US.”

         6. Rationale

            1. The appointment of the 6 voting members is subject to confirmation by both houses (not just the Senate).

               1. Four of the members are appointed by Congress.

   2. Ex Ante—Legislative standards.

      1. Intelligible principle.

   3. Ex Post—Legislative standards.

      1. Statutory overrides, which are very slow because of the bicameral process and can be resisted by the President through exercise of veto power.

      2. Congress does not have the power to veto (without bicameralism and presentment) agency action (Chadha).

         1. Congress cannot reverse any “legally binding” decision by administrators except through Art. I, Sec. 7 process.

            1. Recommendations can be rejected by a single house because they don’t represent any legal status—remember hypo of an AG sending a list of people that he “recommends don’t be deported” in a private bill, which one house could effectively veto.

      3. INS v. Chadha (indirect method of enforcing non-delegation doctrine—encourages Congress to think clearly and delegate with specificity because they can’t veto agency action ex post)

         1. Facts: Chadha’s student visa expired and he sought to remain in the US under §244(a)(1), which allowed the AG, in his discretion and acting through the INS, to suspend deportation in cases where deportation would, in his opinion, result in extreme hardship. After finding the requisite hardship, the INS suspended Chadha’s deportation (legally binding) and a report of suspension was sent to the House, that pursuant to §244(c)(2), vetoed the suspension (if Congress had taken no action, Chadha would have stayed(. Because the House’s action was pursuant to §244(c)(2), the resolution was not treated as an Art. I legislative act and was not submitted to the Senate or presented to the president.

         2. Issue: Whether the legislative veto provided by §244(c)(2) is unconstitutional.

         3. Holding: The House’s actions were clearly an exercise of legislative power, and thus subject to the standards prescribed in Art. I.

         4. Text

            1. “Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President.”

            2. “Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary…shall be presented to the President.”

            3. “All legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

         5. Purpose

            1. The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed.

            2. Presentment serves the important purpose of assuring that a “national” perspective is grafted on the legislative process.

            3. By providing that no law could take effect without concurrence of the prescribed majority of the members of both houses, the Framers emphasized their belief that legislation should not be enacted unless it has been carefully and fully considered.

            4. There is a need to divide and disperse power in order to protect liberty.

         6. Rationale:

            1. The House’s action was essentially legislative in purpose and effect—it altered the legal rights, duties and relations of persons.

            2. “When any branch acts, it is presumptively exercising the power the Constitution has delegated to it.”

            3. No less than Congress’ original choice to delegate to the AG the authority to suspend deportations, Congress’ decision to deport Chadha can only be implemented in one way—bicameralism and presentment.

            4. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.

   4. Ex Post—Discipline

      1. Impeachment—Requires a high crime or misdemeanors and 2/3 vote.

      2. Hearings, Subpoena Power, General Berating

      3. Congress does not have the power to remove agency personnel except via impeachment (Bowsher).

         1. However, Congress could, via legislation, eliminate the office or the statute granting authority altogether.

         2. Congress can remove any officer except President and VP—cabinet officials are completely a creature of statute.

      4. Bowsher v. Synar (indirect method of enforcing non-delegation doctrine—encourages Congress to think clearly and delegate with specificity because they can’t remove agency personnel ex post).

         1. Facts: The Balanced Budget and Emergency Deficit Control Act, which was enacted to eliminate the federal budget deficit, required the Comptroller General to make report budget reduction conclusions to the President, who in turn issues an order mandating the spending reduction specified by the CG. The CG is nominated by the President and confirmed by the Senate but is removable only at the initiative of Congress.

         2. Applicable Statutory Language: The Act provided that the CG may be removed by impeachment or by joint resolution of Congress “at any time” for “permanent disability, inefficiency, neglect of duty, malfeasance, or a felony or conduct involving moral turpitude.”

         3. Issue: Whether the Act, which gave Congress the authority to remove an executive officer by joint resolution, violated Constitutional separation of powers.

         4. Holding: Congress (even bicamerally) cannot reserve for itself the power of removal of an officer charged with the execution of the laws, except by impeachment. Congress cannot delegate to an agent over which it retains removal authority.

         5. Text

            1. The President appoints “Officers of the United States” with the “advice and consent of the Senate.”

            2. Once the appointment has been made and confirmed, the Constitution explicitly provides for removal of these officers by Congress only upon impeachment by the House and conviction by the Senate.

            3. The Constitution limits impeachment of executive officers to cases of “treason, bribery, or other high crimes and misdemeanors.”

               1. The Act’s grounds for removal have great breadth—“inefficiency, neglect of duty, and malfeasance,” as interpreted by Congress, could sustain removal for any number of actual or perceived transgressions of the legislative will.

         6. Rationale:

            1. The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.

               1. The CG is an executive officer because he has the ultimate authority to determine the budget cuts to be made.

            2. To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto—Chadha makes clear this is not allowed.

               1. The fact that Congress has the power to remove the CG through joint resolution renders him “controlled” by Congress.

            3. Concurring, Stevens said that the Act authorized Congress, through its agent the CG, to exercise a form of legislative power through a means short of bicameralism and presentment (to Stevens this was a Chadha problem).

            4. In dissent, White argued that the power delegated to the CG has a distinctly legislative feel to it.

      5. Legislative means of influencing the exercise of delegated authorities.

         1. Appropriations—The power of the purse gives those members of Congress with influence over the agency’s budget considerable leverage over the agency. Congress may attach substantive “riders” to appropriations bills that restrict an agency’s authority to make certain decisions.

2. EXECUTIVE’S POWER OVER AGENCIES

   1. Ex Ante—Regulatory standards.

      1. President can issue “executive orders” and other directives to implement statutes and control the administrative state.

         1. Generally, the President can make procedural changes to statutes but has no substantive power to change statutes.

      2. Source is “take care” clause.

      3. Scope is complicated (Youngstown).

      4. Youngstown Sheet & Tube v. Sawyer

         1. Facts: When the United Steelworkers of American announced its intention to begin a nationwide strike, Truman issued an Executive Order instructing the Secretary of the Treasury to seize the steel mills and to operate them in the name of the US, claiming that the uninterrupted production of steel was vital to success in the Korean War. The affected companies immediately filed suit claiming that the seizure violated the Constitution.

         2. Issue: Whether the President’s EO, authorizing executive seizure of private property was unconstitutional.

         3. Holding: The President’s seizure order cannot stand as it does not stem from an act of Congress nor from the Constitution itself. The President lacks inherent lawmaking power—he must be executing a statute or the Constitution.

         4. Rationale:

            1. In concurrence, Jackson talked about 3 zones of presidential action—“Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”

               1. Zone 1—When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for in includes all that he possess in his own right plus all that Congress can delegate (If his act is held unconstitutional under these circumstances it usually means that the federal government as an undivided whole lacks power—violates NDD).

                  1. There was no statute that expressly authorized Truman’s actions, nor was there any act of Congress from which such a power could be fairly implied.

               2. Zone 2—When the President acts in absence of either a congressional grant or denial of authority (silence) he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain (Congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility).

                  1. Presidents who do things that resemble Art. II powers—“Article II duties” so to speak (not real Art. II powers because they are defeasible by Congress)—get “zone of twilight” benefits.

                  2. The dissent thinks we are in Zone 2 because the Labor Management Relations Act was not a prohibition on the President’s actions.

                  3. Dissent argued that President’s powers to faithfully “execute” supported his actions.

               3. Zone 3—When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers (apple’s core).

                  1. The Court said President’s actions were in Zone 3.

                  2. Truman’s actions were contrary to the will of Congress because the Labor Management Relations Act provided other procedures for dealing with “national emergencies” arising out of a breakdown in peaceful industrial relations—Court said expressio unius.

                  3. Constitution’s “executing” power was inapplicable because the President couldn’t point to a statute authorizing his actions—he wasn’t executing the law and he has no independent lawmaking power.

                  4. Constitution’s “commander in chief” power was inapplicable because we are talking about taking possession of private property and labor disputes.

      5. Midwest Oil (Zone 2)

         1. Oil Placer Act said that all public lands containing oil were free and open to occupation, exploration and purchase.

         2. Court said it was okay for President to withdraw western oil fields until Congress could act because it was a historical practice (Court could infer that Congress would acquiesce)—Presidents had set aside federal lands hundreds of times in the past without complaint from Congress.

         3. Also, President’s actions were within his Article II duties as chief executive to protect the country/federal property.

         4. Court said that President was in Zone 2 because there was (1) congressional silence and (2) the President in a way that looked like he was exercising an Art. II power.

      6. In re Neagle (Zone 2)

         1. After Justice Field was threatened, President Hayes assigned him a US Marshall to protect him. The Marshall was indicted for shooting the man who threatened Fields.

            1. Usually, if a federal officer shoots someone in the course of duty he has official privilege. However, there was no statute authorizing Hayes to appoint Justice Fields a bodyguard.

         2. Court held that Congress had been silent on the issue and that the President had the executive power to protect the personnel of the US.

      7. Liberty Mutual Insurance Co. v. Friedman (Hills thinks this case was decided incorrectly—the holding that if the statute doesn’t explicitly say so, the President can’t act is inconsistent with most courts’ interpretation)

         1. Facts: The President issued EO whereby contractors and subcontractors with the government are prohibited from discriminating in employment and are required to take affirmative action to ensure equal employment opportunity. Because all government contractors are required by statute to provide workers compensation insurance, Liberty was informed that it was a government subcontractor and therefore subject to the requirements of the EO. Liberty contested the determination that providers of workers compensation insurance to government contractors are government subcontractors and brought suit.

         2. Applicable Statutory Language: The EO defined a subcontract as “any agreement or arrangement between a contractor and any person…for the furnishing of supplies or services…which, in whole or in part, is necessary to the performance of any one or more contracts.”

         3. Issue: Whether and to what extent the executive branch has been delegated the authority to require insurance companies providing workers’ compensation to federal contractors to comply with the affirmative action requirements of the Executive Order.

         4. Holding: Although the regulation’s broad definition of “subcontract” is arguably consistent with the purposes of the EO, and although Liberty falls within that definition, we conclude that the application of the EO to Liberty is not reasonably within the contemplation of any statutory grant of authority.

         5. Rationale:

            1. A congressional grant of legislative authority need not be specific in order to sustain the validity of regulations promulgated pursuant to the grant, but a court must reasonably be able to conclude that the grant of authority contemplates the regulations issued.

               1. Without the critical connection to legislative authorization, the Executive’s actions cannot be given effect.

            2. Federal Property and Administrative Services Act (Procurement Act)

               1. The court emphasized that the purpose of the Procurement Act was to provide an efficient system for the government’s procurement of personal property and services, not ensuring racial justice.

               2. The court wanted a real link (nexus requirement) between the statute and the President’s action.

            3. Title VI and VII of the Civil Rights Act of 1964

               1. Neither title contains any express delegation of substantive lawmaking authority to the President.

               2. On the other hand, it doesn’t say he cant—it’s silent (quintessential Zone 2—isn’t there a default rule that silence as to who is supposed to execute a statute should be construed to mean that the President (the executor of the laws) may implement it pursuant to his Art. II powers to make sure that the laws are faithfully executed?).

            4. Furthermore, the rejection of amendments intended to circumscribe the role of the Executive Order Program cannot be fairly construed to contemplate a grant of authority to the President.

            5. The court said that “the possibility that authorization for the EO might be found independently of statutory sources in the inherent powers of the President inferable from the general powers conferred directly upon him by Article II is completely foreclosed by Youngstown”—but that doesn’t seem right.

   2. Ex Ante—Selection of personnel.

      1. President must have the power to appoint “non-inferior” officers with advice and consent of the Senate (Art. II, Sec. 2).

      2. Congress may (but is not required to) assign the appointment of “inferior” officers to “heads of departments” or “courts of law.”

   3. Ex Post—Removal

      1. Art. II doesn’t say anything about how people can be removed (except impeachment).

         1. Some people believe that the removal power can be read into the open-ended grant of executive power (vesting power coupled with take care clause), which Article II vests in the President alone.

         2. Others view the removal power as a traditional implication of the appointment power.

         3. Some believe that the necessary and proper clause vests removal power in Congress.

      2. There is a distinction between a statutory power to remove executive officials, which the President can always enjoy if Congress bestows it on him, and a constitutional entitlement to remove such officials.

      3. The Court has held that, under an inference form Article II, the President must (constitutional entitlement) have the sole power to remove “purely executive” and non-inferior officers who assist him in carrying out discretionary duties (Myers).

         1. This is the main mechanism for control of executive agencies.

         2. Congress violates this constitutional entitlement either by retaining some removal power or by limiting dismissal to good behavior.

      4. Myers v. United States

         1. Facts: Myers was appointed by the President (WACOS) to be postmaster of the first class for a term of four years. Before this term was over, he was removed from office by order of the President (the Senate did not consent). Myers protested.

         2. Applicable Statutory Language: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice an consent of the Senate.”

         3. Issue: Whether the President has the exclusive power of removing executive officers of the US whom he has appointed by and with the consent of the Senate (“non-inferior” officers—not civil servants who are considered “inferior” officers).

            1. Can Congress reserve for itself removal power?

            2. Can Congress limit the President’s removal power?

         4. Holding: The law which denies to the President the unrestricted power of removal of first-class postmasters is in violation of the Constitution and invalid—...

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