Executive Authority

1. Executive Authority Executive Orders & Gays in the Military

2. Case Study Analysis Approach in evaluating a case study or problem: What is the problem or need and why is it important? Can the problem or need be addressed under existing statutory authority? Are the interests of the parties mutually exclusive? If not, what are the common interests that can lead to a process for resolving other issues.

3. Executive Powers Article II Powers Oversight of Executive Departments Hire & Fire Reporting Appointment of Agency heads (w/Senate confirmation) Inferior officers (Indep. Counsel) Veto of legislative actions OMB Reporting for agency budgets. Agency heads of independent agency removal only with cause. Agency heads of independent agency removal only with cause.

4. Branch System-Check & Balance

5. Legislative vs. ExecutiveLegislative Veto vs. Line Item Veto Congress reserves power in itself after delegation. Effect is to void agency action without the need for legislation. Used to assure accountability over executive and independent agencies. Found to be counterprooductive and is essentially dead or sever veto provision. Power of the President to veto a line of a bill, or discrete sections. 1998-- Struck down as unconstitutional delegation to Executive to amend laws enacted by Congress. Bills can only be amended via: Bicameralism Presentment Legislative Veto: : Reservation of power by Congress that a statutory delegation will be valid unless vetoed by a resolution of both houses w/in one or both houses of Congress w/in a set period. 1. Used by Congress in actions taken by territories of US such as D.C., or over such agencies like the FTC, that have been viewed as having too much power to affect commerce. 2. Effect is to void the agency action without needing to pass legislation. Has been attacked as unconstitutional. Congress has used it to be secure accountability over executive and independent agencies. W/o it Congress can either refrain from delegation, or abdicate to the executive branch or independent agency. Congress has used it in every aspect of government. It a. over the years it has been found to be counterproductive. It has in effect decreased power when rules are not actually reviewed by Congress. 3. Current practice: legislative veto is for many purposes dead. Report and wait 30-60 days before it is effective. Where struck down, Ct. usu. sever veto provision from statute and invalidate.Legislative Veto: : Reservation of power by Congress that a statutory delegation will be valid unless vetoed by a resolution of both houses w/in one or both houses of Congress w/in a set period. 1. Used by Congress in actions taken by territories of US such as D.C., or over such agencies like the FTC, that have been viewed as having too much power to affect commerce. 2. Effect is to void the agency action without needing to pass legislation. Has been attacked as unconstitutional. Congress has used it to be secure accountability over executive and independent agencies. W/o it Congress can either refrain from delegation, or abdicate to the executive branch or independent agency. Congress has used it in every aspect of government. It a. over the years it has been found to be counterproductive. It has in effect decreased power when rules are not actually reviewed by Congress. 3. Current practice: legislative veto is for many purposes dead. Report and wait 30-60 days before it is effective. Where struck down, Ct. usu. sever veto provision from statute and invalidate.

6. Appointment Powers All principal and inferior officers as stated by Congress; Include heads of all of the executive dept. and members of independent agencies in executive branch. Article III judges, including Justices of Supreme Court, federal judges on court of appeals and district courts. N/a to employees or inferior offices. Appoints all principal and inferior officers as stated by Congress; include heads of all of the executive dept. and members of independent agencies in executive branch. Article III judges, including Justices of Supreme Court, federal judges on court of appeals and district courts. N/a to employees or inferior offices.Appoints all principal and inferior officers as stated by Congress; include heads of all of the executive dept. and members of independent agencies in executive branch. Article III judges, including Justices of Supreme Court, federal judges on court of appeals and district courts. N/a to employees or inferior offices.

7. Removal Powers Article II appointees can only be removed by impeachment, although seldom impeached. Congress can�t remove executive heads but can require for cause removal. Independent agency heads-Only for cause. Look at Congressional intent re: 1) Commission was nonpartisan and intended to be impartial; 2) Duties are quasi judicial and legislative in nature. : Article II appointees can only be removed by impeachment, although seldom impeached. Congress could not restrict President�s power to remove if the officer is purely executive; but Congress could restrict President�s power to remove. Focus on the nature of action, Is it executive in enforcing the laws, e.g. enforcement or investigation. Power to remove is incidental to the power to appoint. : Article II appointees can only be removed by impeachment, although seldom impeached. Congress could not restrict President�s power to remove if the officer is purely executive; but Congress could restrict President�s power to remove. Focus on the nature of action, Is it executive in enforcing the laws, e.g. enforcement or investigation. Power to remove is incidental to the power to appoint.

8. OMB Budget Oversight Power to review and revise budgetary and legislative requests through Office of Info and Regulatory Affairs. Advance notice and impact report on agency actions and compatibility with executive goals. Interagency review is usually frequent and diverse to ensure broad policy coordination. Justice Dept. auth. to conduct litigation for agencies--defend and bring suit. power to review and revise budgetary and legislative requests through Office of Info and Regulatory Affairs b. Oversight of agency decision making is limited 'cause no incentive to take sides. Pres. Elected by all of the people c. interagency review is usu. frequent and diverse is is justified to ensure broad policy coordination. d. Justice Dept. auth. to conduct litigation for agencies--defend and bring suit.power to review and revise budgetary and legislative requests through Office of Info and Regulatory Affairs b. Oversight of agency decision making is limited 'cause no incentive to take sides. Pres. Elected by all of the people c. interagency review is usu. frequent and diverse is is justified to ensure broad policy coordination. d. Justice Dept. auth. to conduct litigation for agencies--defend and bring suit.

9. Executive Orders Interpret law and have the force and effect of law in the absence of congressional action. Give direction to agency re enforcement, implementation of law, narrow or broaden scope. Permanent action would require legislation. Often used to provide interpretation of how it should be enforced. E.O. does not create any right or benefit enforceable in law or equity against the government. Designed to prevent direct judicial review of violations of EO. Each agency should develop and report regulatory agenda under development or review thru OIRA. OIRA often reviews for conflicts with President�s priority and creates a centralized review of regulation that impact economy, environment, public health, state or local, or federal programs; conflict with other agency actions, or raise novel legal or policy issues. EO does not create any right or benefit enforceable in law or equity against the government; designed to prevent direct judicial review of violations of EO.  Each agency should develop and report regulatory agenda under development or review thru OIRA. OIRA often reviews for conflicts with President�s priority and creates a centralized review of regulation that impact economy, environment, public health, state or local, or federal programs; conflict with other agency actions, or raise novel legal or policy issues. EO does not create any right or benefit enforceable in law or equity against the government; designed to prevent direct judicial review of violations of EO.

10. Case Study: Gays in the Military Homosexual (per Websters) is a person "of or characterized by sexual desire for those of the same sex.� What is the Don�t Ask-Don�t Tell Policy? How did Clinton use the E.O. to fulfill a campaign promise? Was it an abuse of discretion to use E.O. to change policy? Attempt to regulate desire and behavior. Gov. is groping with "don't tell policy" which will prevent the government from asking the question. If you are gay, as long as you stay in the closet, its okay because it is a private matter. Once you raise it to a lifestyle, conduct is involved which infringes upon others rights and creates moral and religious issues of condoning behavior they may not fundamentally accept. Gov. seems willing to accept closet gays but not openly labeled gays.Attempt to regulate desire and behavior. Gov. is groping with "don't tell policy" which will prevent the government from asking the question. If you are gay, as long as you stay in the closet, its okay because it is a private matter. Once you raise it to a lifestyle, conduct is involved which infringes upon others rights and creates moral and religious issues of condoning behavior they may not fundamentally accept. Gov. seems willing to accept closet gays but not openly labeled gays.

11. Facts Approximately 200K of 2 million in the military are gay. Of 2700 men and women surveyed, about 3-9% of men and 5% of women regularly have sex with someone from the same gender. 2% of men and .7% of women admit that they have had sex with the same person at least once.

12. Chronology May 19, 1992 Meinhold, an enlisted officer in Navy, admits gay. Military seeks to sever him from navy. He sues. Nov. 1992-- Clinton elected President. Campaign promise to eliminate ban on gays in the military. January 1993--Clinton proposed an Executive Order suspending policy against discrimination in the military. January 29, 1993--Clinton and Armed Services agree to 6 mo time out from action against gays. D.Ct. judge invalidates ban against Meinhold as unconstitutional. Congress wants to seek a compromise rather than let the court decide. Issue: status (don't ask) or conduct (can discharge). September 29, 1993 -House voted for modified policy 301-134 August 31, 1994 Ninth Circuit affirmed that part striking it down as it relates to Meinhold, but reversed that judgment was overbroad. April 1996 After remand, Ninth Circuit upheld the policy as not a violation of Free Speech rights. Policy is set forth by regulation but is not specifically sanctioned by law. D.Ct. judge invalidates ban against Meinhold as unconstitutional. and extended ban across the board. Secretary of Defense urged Congress to seek a compromise rather than let the court decide. Issue turns on whether focus on status (don't ask) or conduct (can discharge). STRATEGY: Congress got a 6 month time-out to allow military to take action vs gays while work out resolution between Senator Nunn, Chairman of Jt. Chief of Staff and Les Aspin, Secy of Defense, acting for Clinton. Republicans threatened to pass a bill that would make the ban law. Ban is a current policy, not law so it can be upheld on policy grounds. House Vote: Modified ban becomes law as soon as $263 billion defense budget is appropriated. House and Senate bills are identical. Codified ban on homosexuals serving in the military, but stopped the practice of asking and baring investigation without credible evidence of conduct. Amendments to leave it to the President lost 264-169, Ask recruits about sex lost 292-144. Policy is set forth by regulation but is not specifically sanctioned by law. D.Ct. judge invalidates ban against Meinhold as unconstitutional. and extended ban across the board. Secretary of Defense urged Congress to seek a compromise rather than let the court decide. Issue turns on whether focus on status (don't ask) or conduct (can discharge). STRATEGY: Congress got a 6 month time-out to allow military to take action vs gays while work out resolution between Senator Nunn, Chairman of Jt. Chief of Staff and Les Aspin, Secy of Defense, acting for Clinton. Republicans threatened to pass a bill that would make the ban law. Ban is a current policy, not law so it can be upheld on policy grounds. House Vote: Modified ban becomes law as soon as $263 billion defense budget is appropriated. House and Senate bills are identical. Codified ban on homosexuals serving in the military, but stopped the practice of asking and baring investigation without credible evidence of conduct. Amendments to leave it to the President lost 264-169, Ask recruits about sex lost 292-144.

13. 10 USC 654 (a) Findings: Congress makes the following findings (1) Sect. 8 of art 1�commits exclusively to the Congress the power to raise and support armies. (2)There is no constitutional right to serve in the armed forces. (4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise�. One of the most critical elements in combat capability is unit cohesion� (13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.

14. Policy (10 USC 654) (b) A member of the armed forces shall be separated �under regulations prescribed by the Secretary of Defense if one or more of the following findings is made�: (1)That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act, unless there are further findings: (B) such conduct�is unlikely to recur; (C) ..was not accomplished by use of force, coercion & intimidation; (D) �members continued presence is consistent with the interests of the armed forces; (E) �member does not have a propensity or intent to engage in, �homosexual acts. (2) That the member has stated that he or she is a homosexual or bisexual�. (3) �person has married or attempted to marry a person� of the same biological sex.

15. Definition of a Homosexual (f)(1) �means a person, �who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the term �gay� and �lesbian.�

16. Definition of a Homosexual 10 USC 644 (3)the term �homosexual act� means� (A) any bodily contact, actively undertaken or passively permitted between members of the same sex for the purpose of satisfying sexual desires; and (B) any bodily contact which a reasonable person, would understand to demonstrate a propensity or intent to engage in an act�in subparagraph (A).

17. Free Speech & Association First Amendment or liberty interest to be free to engage in common occupation and maintain a good reputation. Other person's liberty interest not to have persons around them in close quarters which may invade a reasonable sphere of privacy. Gov. is groping with "don't tell policy" which will prevent the government from asking the question. If you are gay, as long as you stay in the closet, its okay because it is a private matter. Once you raise it to a lifestyle, conduct is involved which infringes upon others rights and creates moral and religious issues of condoning behavior they may not fundamentally accept. Gov. seems willing to accept closet gays but not openly labeled gays. If you don't consider yourself to be, can the government characterize you as such and take action against you. If it is wrong and they can ask, if you lie then you may be subject to discharge for perjury, notwithstanding conduct, label distinction. Gov. is groping with "don't tell policy" which will prevent the government from asking the question. If you are gay, as long as you stay in the closet, its okay because it is a private matter. Once you raise it to a lifestyle, conduct is involved which infringes upon others rights and creates moral and religious issues of condoning behavior they may not fundamentally accept. Gov. seems willing to accept closet gays but not openly labeled gays. If you don't consider yourself to be, can the government characterize you as such and take action against you. If it is wrong and they can ask, if you lie then you may be subject to discharge for perjury, notwithstanding conduct, label distinction.

18. Constitutional Protections Due process right to a Pretermination hearing before discharge. Post-termination hearing subjects person to stigma; so get full trial-type hearing w/cross-exam. Equal protection right distinguishes conduct from label. Gov. can legislate morality if necessary to maintain order, cohesion & combat readiness. No property right to continued service in military. Obligation if conscription (draft) imposed. Generally, the individual gets a pretermination hearing given the nature of the action involved. The rationale being the impact on liberty interest: ability to get future employment, reputation and good name. A post-term hearing won't address the stigma associated and potential physical reprisal. due process may be satisfied in other situations involving violation with a post-term hearing. Full trial-type hearing with cross-exam. Amount of evidence taken should be able to relate to homosexual activity/conduct.Generally, the individual gets a pretermination hearing given the nature of the action involved. The rationale being the impact on liberty interest: ability to get future employment, reputation and good name. A post-term hearing won't address the stigma associated and potential physical reprisal. due process may be satisfied in other situations involving violation with a post-term hearing. Full trial-type hearing with cross-exam. Amount of evidence taken should be able to relate to homosexual activity/conduct.

19. Case Study: Gays in the Military What is the Don�t Ask-Don�t Tell Policy? On the application, not ask & not required to tell if you are gay/ How did Clinton use the E.O. to fulfill a campaign promise? Used E.O. to modify military guidelines re information sought from applicants. Was it an abuse of discretion? No, because Congress had the right to act and threatened to codify ban unless compromise reached.

20. Rumsfeld v. Forum for Academic and Institutional Rights S.Ct. ruled (8-0 vote )federal government can withhold federal funds from colleges that bar or restrict military recruiting on their campuses. 3rd Cir. Ruled gov. failed to show needs justified intrusion into Free Speech rights. Campuses have no First Amendment right to exclude recruiters who discriminate against gays. Solomon Amendment allows government to withhold federal funds, e.g., work study, financial aid. & contracts. (passed in 1994)

21. Rumsfeld v. Forum for Academic and Institutional Rights SCT: �The Solomon amendment neither limits what law schools may say nor requires them to say anything.� "Law schools remain free under the statute to express whatever views they may have on the military's Congressionally mandated employment policy, all the while retaining eligibility for federal funds." (Roberts wrote majority opinion) Institutions are free to institute amelioration measures to state position on the issue. Institutions are free to institute amelioration measures to state position on the issue.

22. Discussion Questions 1) How do you identify a homosexual person under the policy? To what extent should the Military Board rely upon a person's characterization of themselves vs. labels attached to a person as a "homosexual" in deciding on the application of the regulation ban. If someone denies or fails to acknowledge his or her homosexuality, but someone else "outs" him or her, would that be sufficient to establish that they are a homosexual? 2) Should this issue be resolved by Executive Order, congressional legislation, or by Judicial review. What are the policy and legal arguments to support the claim that the regulation is required to maintain discipline, good order and morale? 3) What effect should congressional or state action failing to recognize the rights of gay persons to marry or be entitled to benefits have on military policy regarding gays in the military. 3) What due process protection must be followed by the Military Board before it may discharge an officer under the regulation and to what extent may the Board inquire into the sexual proclivities of a person before it once the issue is raised? (Look at the Order and accompanying regulations) 3) What due process protection must be followed by the Military Board before it may discharge an officer under the regulation and to what extent may the Board inquire into the sexual proclivities of a person before it once the issue is raised? (Look at the Order and accompanying regulations)