Chapter 2

1. Chapter 2 Part 2

2. Presidential Control of Agencies • The president's ultimate control over an agency is through hiring and firing agency personnel, or at least through having that option available • Is the president free to appoint and remove who he wants? • How much control can congress exercise over executive branch agency personnel?

3. Art II, sec. 2, cl 2 - the Appointments Clause "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] 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.“

4. Limits on Congressional Appointments • Congress creates and shapes the executive branch • Without specific appropriations, there would be no White House and the president would have to rent space from his own pocket • Under the Appointments Clause, Congress cannot make appointments to executive branch agencies • Congress can impose requirements on appointments • Limitations on who can be appointed, such as requiring political balance on the FEC • Limitations on removal, which create independent agencies discussed later in the chapter

5. Civil Service • Congress developed the Civil Service to protect workers from losing their jobs every time the administration changed • Most personnel are civil service and can only be fired for cause with due process • Limited due process for security agencies • This was carried over and broadened in the Homeland Security Agency

6. Pros and Cons of the Civil Service • Why is it important to you if you want to be a government lawyer? • What are the problems with the system? • How high should it go? • Career track problem for senior people without lucrative outside jobs • Public Health Directors • Lawyers in specialized areas without private practice

7. Buckley v. Valeo, 424 U.S. 1 (1976) • Original process for selecting members of the Federal Election Commission (FEC) • Two members appointed by the President pro tempore of the Senate, • two by the Speaker of the House, and • two by the President (all subject to confirmation by both Houses of Congress), and • the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members • Challenged as an Appointments Clause violation

8. The Role of the FEC • What does FEC do that is forbidden to Congress? • (This is the defining action for an executive branch agency) • How does allowing congress to appoint commission members undermine separation of powers? • Was the selection process for the FEC commissioners constitutional?

9. The Congressional Budget Office (CBO) • The “primary function” of the CBO is to give the House and Senate Committees on the Budget information that “will assist such committees in the discharge of all matters within their jurisdiction.” The CBO also has additional duties, all of which relate to giving Congress information on budget matters. • The Director is appointed for a four-year term by the Speaker of the House of Representatives and the President pro tempore of the Senate. • Does this appointment scheme violate the Appointments Clause?

10. Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc. 501 U.S. 252 (1991) (“MWAA”) • The federal statute authorized the airports to be run by an Airport Authority • Major decisions of the Airport Authority were subject to the veto of a “Board of Review.” • The federal statute dictated that the Board be composed exclusively of Members of Congress. • Putting aside the Appointments Clause issue, how does having Congressmen on the board violate Bicameralism and Presentment?

11. The Library of Congress • The Librarian is appointed by the President. • Its operation is overseen, however, by the Joint Committee of Congress on the Library. • The Joint Committee consists of the chairman and four members of the Committee on Rules and Administration of the Senate and the chairman and four members of the Committee on House Oversight of the House of Representatives. • Is congressional oversight a violation of separation of powers? • Does it need to be an executive agency at all, i.e., could congress run its own library and hire the director? • What do we need to know about the library to decide? • What part does make rules and get involved in enforcement?

12. Congressional Removal of Executive and Judicial Branch Officers • Impeachment • Brought by the house • Senate as jury • Only for “Treason, Bribery, or other high Crimes and Misdemeanors.” • Why is this of limited effectiveness for agency oversight? • Why is this a problem for dealing with bad judges? • The executive branch can remove its own, but only congress can remove judges • Could Congress remove the head of the CBO without impeachment?

13. Formal Legislative Review and Oversight of Executive Branch Agencies • (1) an appropriations committee, which oversees how the agency spends its budget; • (2) a “substantive” committee, which oversees the substance of the agency’s work; and • (3) “government operations” committee, which is concerned with the agency’s efficiency and its coordination with other parts of the government. • One of each of these three types of committees will exist in both the Senate and the House. • Why did they all miss the financial agency failures?

14. Informal Legislative Review and Oversight • Members of Congress ask agencies about some grievance of their own or their constituents. • all types of contacts (telephone calls, e-mails, and so on) between individual Members of Congress, or the Member’s staffs, or a committee’s staff, and agency officials. • Many of these informal contacts relate to discrete agency actions affecting specific constituents. • Do you think Congressmen get better service? • Where does lobbying come in? • Charlie Wilson's War?

15. What is an Earmark? • Congress enacts a statute that appropriates a lump sum of $10 million for the Indian Health Service (“IHS”) • The appropriations statute is accompanied by a report from the appropriations committee saying that IHS should use part of the $10 million to continue operating an existing medical clinic. • Is this consistent with the founders intent? • The appropriations statute itself, however, does not refer to the clinic. Nor does IHS’s organic statute.

16. Enforcing Earmarks • The organic statute broadly authorizes IHS to spend its appropriation “for the benefit, care, and assistance of the Indians.” • What if the agency ignores the report and closes the health center? • Can this be challenged in court?

17. Executive Power

18. Vesting and Take Care Clauses • “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. • Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.” Art. II, § 3. • Together, these define the source of the president's domestic powers

19. The Unitary Executive • Do all of the executive branch powers belong to the president him/herself? • In Chadha, Congress gave the Attorney General the power to stay the deportation of an alien • Can the president tell the AG's how to rule? • Can he only fire the AG? • Why does it matter whether the president has the power or the secretary has the power? • How does the Appointments Clause fit into this analysis? • If it is the president's power, why should the Senate care who he appoints? • What if the Senate will not confirm a secretary?

20. President Nixon and the Independent Counsel • Great crisis in presidential control. • The Saturday night massacre • Nixon orders the AG to fire the independent counsel who was investigating Watergate • Nixon's firing of the independent prosecutor was the background for this law • What was Clinton's biggest political mistake? • Not vetoing the renewal of the Independent counsel law.

21. Morrison v. Olson, 487 US 654 (1988) • What did Olson hope to do with his suit? • What triggers the appointment of an independent counsel? • Who appoints the independent counsel? • Why class of officer must this then be?

22. The Core Function Standard for Inferior Officers • Is the independent counsel an "inferior" official? • Does the independent counsel have a policy making role? • Is this a critical area for the president to control the exercise of discretion? • How does the president retain control? • Why will the independent counsel process always be political?

23. What was the key issue in Olson? • The limitation of the removal power to good cause, rather than at-will • Does this impermissibly interfere with the president's power to carry out the laws? • Majority says no, focusing on the preservation of separation of powers • Scalia saw this as a stark limitation on the president's power to exclusively control the executive branch.

24. Was Scalia Right? • What was he worried about as regards the power of the office? • He stresses the broad powers of the IC • How did this play out in Whitewater, the Clinton investigation? • What would it cost you to be investigated if you were a junior White House counsel?

25. Edmond v. US, 520 U.S. 651 (1997)The Supervision Test • Coast Guard criminal appeals judges are subject to administrative supervision by the Judge Advocate General, who also has the power to remove them without cause. • The judges’ decisions are subject to review by the Court of Appeals for the Armed Forces. • In Edmond, the Court held that judges of the Coast Guard Court of Criminal Appeals are “inferior” officers. • The Edmond Court based that holding exclusively on the fact these judges’ work is directed and supervised by principal officers.

26. Congressional Determinations • If the Congress establishes that the position is an inferior officer, the courts have not second-guessed it. • This might change if Congress created an inferior office that was clearly the job of a principal officer. • Be careful of circular arguments • Just because an officer is not required to be appointed under the appointment's clause, that does not prevent the court from finding that the position is covered by the Appointment's Clause. • The real problem is that the court will also not second guess Congress determining that an officer must be confirmed by the Senate.

27. Example: General Counsel to a Cabinet Agency • What is the classification of the Secretary of Veterans Affairs? • What are the duties of the General Counsel to the Secretary? • Is the general counsel an employee, inferior officer, or principle officer of the US? • Much more authority than just an employee • Does the general counsel make decisions that affect agency policy or enforcement? • What is the level and right of supervision by the Secretary?

28. Tenure of Office Act – 1867 • If Congress is silent on removal, the officer serves at the discretion of the President • This Act limited the right of presidents to remove cabinet members without the consent of the Senate. • President Andrew Johnson removed the Secretary of War • Was impeached, but not removed by one vote. • There are now no limitations on removal of Cabinet Officers

29. Myers v. US, 272 US 52 (1926) • President Wilson discharged an Oregon postmaster without cause • Postmaster sued for back pay under a law passed after the Tenure in Office Act that required the senate to approve appointment and removal of postmasters • Why all this concern about a postmaster? • Chief Justice and Ex-President Taft wrote the opinion, which found the Tenure in Office Act and related acts an unconstitutional limit on presidential power.

30. Humphrey’s Executor v. US, 295 US 602 (1935) • Less than 10 years later, Meyers is again at issue - what is the political change over that period? • Why was the FTC controversial at that time? • What was the restriction on removing FTC commissioners? • How did the lawsuit arise? • President fired Humphrey from the FTC • Humphrey died and his executor sued for the pay for the rest of his term

31. Myers Redux • Why did the court change its view on the removal power? • How is a postmaster different from an FTC commissioner? • (This has not been important in later cases) • What type of agency does this create? • Where does the independence come from? • Are the agencies independent if the President is in office long enough to appoint all the members?

32. How could the president fire an FTC commissioner? • In theory the president could state a cause and fire a commissioner, but it has not happened • It has not been an issue because they get hounded out of office if there is cause • Does this mean that they always stay when the president in unhappy with them? • This is an area where the presidents have not challenged the court

33. The Politics of the Sentencing Commission • Started out as a way to moderate unreasonable sentences • Sentences were made longer and the judges lost discretion to shorten them. • White collar criminals did more jail time • First time drug offenders did a lot more time. • Limited and eliminated various ways to shorten a sentence (no parole) • End result was the opposite of the intention

34. Mistretta v. US – 1989 • This case attacked the US Sentencing Commission as an impermissible limitation on the Judicial Branch • The Commission is an independent commission in the Judicial Branch • The members are appointed by the President • There are no terms of office • The Court found that the president could remove them, even though this is not an executive branch agency

35. The Mistretta Ruling • Read as holding that the president can remove anyone he appoints, as long as there are no terms of office • The Court upheld this commission because of it peculiar nature, finding that it did not unduly affect the judicial branch • Is there any right to judicial discretion? • Probably limited by the power of congress to set sentences - nothing says judges are allowed sentencing discretion • The powers of the sentencing commission have now been limited on due process grounds

36. Removal Wrap Up • What if the statute says an officer serves until removed for good cause, but does not specify a term of office? • Think about what would happen if they could not be removed except for cause. • Can the head of a department remove inferior officers he has appointed? • Unless Congress creates a term of office, if you appoint someone, you can fire them. • Terms of office for agency heads create independent agencies • These agencies are still executive branch agencies

37. Line Item Veto - Clinton v. City of New York, 524 U.S. 417 (1998) • What is a line item veto? • Why was a line item veto unnecessary in the founders vision of the operation of federal budget? • How have things changed? • Why do presidents want them? • How might a line item veto cause a president problems? • What separation of powers issues does it raise? • How did the court rule in this case?

38. Review: Executive Orders • Orders from the President to agency heads • Sets policy on discretionary decisions • Not defined by the Constitution or legislation

39. Types of Executive Orders • Domestic Policy Orders • http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders • National Security Orders • http://www.fas.org/irp/offdocs/direct.htm • Domestic Policy Orders • http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders • National Security Orders • http://www.fas.org/irp/offdocs/direct.htm • Domestic Policy Orders • http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders • National Security Orders • http://www.fas.org/irp/offdocs/direct.htm

40. Limits on Executive Orders • Cannot change budgetary allocations • Cannot change statutory duties • The Gag Rule controversy (Rust v. Sullivan, 500 U.S. 173 (1991) • Cannot abrogate due process • No directing the result of an adjudication • Cannot legislate • President cannot make binding regulations by Executive Order • Cannot use them to change policy for Independent Agencies

41. Regulatory Review and Coordination

42. OMB/Executive Order Review • Executive branch review done through executive orders • The purpose is to “reform and make more efficient the regulatory process"

43. “Principles of Regulation” • These principles require agencies to consider many factors when devising a regulation, including the costs and benefits of the regulation; alternatives to the regulation; and the impact of the regulation on state, local, and tribal governments and officials. • Each agency designates a “Regulatory Policy Officer” (“RPO”). • The RPO reports to the head of the agency and must be involved “at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles [for regulation].”

44. Regulatory Agenda • The regulatory agenda is “an inventory of all regulations under development or review” by that agency. • The “regulatory plan” identifies “the most important significant regulatory actions” that the agency plans to take in the next year or so. • The regulatory agenda (with its regulatory plan) goes to the Office of Information and Regulatory Affairs (OIRA) • OIRA circulates it to other agencies and conducts its own review for conflicts • OIRA also has meetings with the agency and Vice President to coordinate agency action

45. OIRA Review of Significant Regulatory Actions • Significant regulatory actions are proposed regulations: • (1) that have a major effect on the economy; the environment; public health; state, local, or tribal governments; communities; or existing federal programs; • (2) that conflict with other agency actions; or • (3) that raise novel legal issues or policy issues. • OIRA considers whether the planned regulation: • complies with the applicable law, the President’s priorities, and the principles for regulation. • conflicts with the actions or planned actions of any other agency. • OIRA sends the written results of this review back to the agency and involves the president if it cannot resolve problems

46. OIRA and Independent Agencies • OIRA reporting requirements, which can be waived • OIRA can make recommendations • If the agency rejects the recommendations, the president or vice-president are not involved • What is the problem with OIRA review of independent agencies?

47. Information (Data) Quality Act • The Act requires OMB to issue guidelines to agencies ‘‘for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies.’’ • Agencies, including independent agencies, must implement these guidelines • Includes provision for individuals to challenge and correct information about themselves • Since this is statutory, not an EO, it is Congress modifying the status of independent agencies and poses no constitutional problem.

48. Judicial Review of Executive Review • E.O. 12866 states that it “does not create any right or benefit . . . enforceable at law or equity” against the government or its officials. • This prevents direct judicial review of alleged violations of E.O. 12866 • This also means that citizens cannot challenge OIRA/OMB review or failure to review. • There can be review of actions by OIRA if these otherwise raise constitutional or administrative law issues.