Separation of Powers and Due Process

Legislative power

Non-delegation

A.L.A. Schechter Poultry Corp. v. United States (U.S. 1935)

NIRA permitted the President to create codes of fair competition.
Majority (Hughes): Unconstitutional. The President’s discretion in approving or prescribing codes, and thus enacting trade laws, is virtually unfettered.
- NIRA’s alleged constitutional faults are: lack of fair procedure, no rules of conduct, and no subject-matter restrictions.
Concurrence (Cardozo): The President’s discretion is too open-ended because it allows him to decide what are desirable industry practices, not just eliminate certain undesirable practices.

Benzene Case (U.S. 1980)

Statute authorized Secretary of Labor to promulgate regulations eliminating “significant risks of harm” in the workplace.
Plurality (Stevens): The Secretary cannot promulgate regulations banning a certain chemical without first demonstrating a significant risk of harm and the feasibility of banning it.
- Uses the non-delegation doctrine as a canon of statutory construction? (“Significant risk of harm” as an intelligible principle saving the statute.)
Concurrence (Powell): The statute requires cost-benefit analysis before the Secretary can even make this determination.
Concurrence (Rehnquist): The statute creates a standard-less delegation of legislative power; the word “feasible” in the statute is a mere mirage.
- Strong-form non-delegation doctrine.
Dissent (Marshall): The Secretary found the significant risk required.
- Deference to agency expertise.

Whitman v. American Trucking Associations (U.S. 2001)

Clean Air Act granted the EPA considerable discretion to create NAAQS.
Majority (Scalia): We have never demanded that statutes provide a determinate criterion for saying how much of the regulated harm is too much.
- Also rejects the “subsidiary principle” that agencies can tie their own hands with regard to exercising their delegated legislative powers and thereby avoid a non-delegation problem.
Concurrence (Thomas): The intelligence principle doctrine is a poor proxy for impermissible delegations of legislative power.
Concurrence (Stevens): Let’s acknowledge that this power is legislative, but constitutional because adequately limited by the statute’s terms.

Legislative veto

INS v. Chadha (U.S. 1983)

Statute permitted either house of Congress to nullify Attorney General’s decision to suspend a deportation via resolution.
Majority (Burger): Adopts a formalist view about the difference between executive and legislative power.
Dissent (White): If Congress may delegate lawmaking power to agencies, it is difficult to understand Article I as forbidding Congress from also reserving a check on legislative power for itself.

Executive power

Appointments

Buckley v. Valeo (U.S. 1976)

FECA created the FEC with six voting members—two appointed by the President with confirmation by both chambers, two by the Speaker, two by the Senate President Pro Tem.
Per curiam: Any appointee exercising significant authority pursuant to federal law is an “Officer of the United States,” and must therefore be appointed in the manner prescribed by § 2, clause 2 of Article II. While the Clause authorizes Congress to vest the appointment of the officers in courts of law or heads of departments, neither the Speaker nor the President Pro Tem comes within this language. Nor does the Clause provide for House confirmation of appointees at all.

Edmond v. United States (U.S. 1997)

The Coast Guard Court of Criminal Appeals’ decisions are subject to review by the Court of Appeals for the Armed Forces. Court had two civilian members, appointed by the Secretary of Transportation without Senate confirmation.
Majority (Scalia): Whether one is an “inferior” officer depends on whether he has a superior. Because the JAG cannot reverse the court’s decisions, and the Armed Forces appeals court can only render a final decision if permitted to do so by other executive officers, the Coast Guard court does not function as an “inferior.”

Free Enterprise Fund v. Public Company Accounting Oversight Board (U.S. 2010)

SOX created the Board and provided that its members are appointed by the SEC and removable by the SEC for cause.
Majority (Roberts): The SEC commissioners can collectively serve as the “heads of department” constitutionally permitted to appoint Board members.

Removal

Myers v. United States (U.S. 1926)

President Wilson fired the Postmaster General, without Senate consent, before the expiration of his term.
Majority (Taft): The President’s authority to remove is innate to his executive power.

Humphrey’s Executor v. United States (U.S. 1935)

FTC was created as an independent agency. President Roosevelt fired an FTC commissioner.
Majority (Sutherland): Congress’s intention that the FTC be independent would be frustrated by this claimed power of removal.
- At least for purely executive officers (such as Cabinet secretaries), Myers survives, but perhaps not for those with quasi-legislative or -judicial power like FTC commissioners.

Morrison v. Olson (U.S. 1988)

Ethics in Government Act created the post of independent counsel, who could only be removed by the Attorney General and only for cause.
Majority (Rehnquist): The for-cause requirement does not unduly restrict executive authority, because the executive retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities.
Dissent (Scalia): The Constitution does not permit the statute to reduce presidential control over executive officers at all.
- Since the independent counsel looks like a purely executive officer, Scalia would probably say this looks a lot more like Myers than like Humphrey’s Executor. Then again, Rehnquist’s argument has some Humphrey’s Executor support, since Congress intended that the counsel be independent.
- A long-term decline in the President’s removal power:
  - Myers: President can remove officers at...

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