4 of 33

Constitutional Requirements

Bicameralism: The two-house approval system by which bills are passed through Congress. To be valid, all legislation must be approved by a majority of each congressional house.

Presentment: All congressionally ratified bills must be presented to the President, who may either sign them into law or veto them. Congress can override the President’s veto if two-thirds of each house approves the vetoed bill.

5 of 33

Immigration and Naturalization Service v. Chadha (1983)

Jagdish Rai Chadha came to the U.S. on a student visa as an exchange student. He was born in the British colony of Kenya to Indian parents, and a citizen of the UK and Colonies who entered the U.S. on a British passport.
In 1963, Kenya declared its independence from Britain, and Chadha was not recognized as a citizen or resident of Kenya because his parents were Indian.
Chadha was also not recognized as a citizen of India because he was born in Kenya.
Chadha was stripped of his right of abode in the UK under the Immigration Act of 1971 due to his lack of connection with the UK.
Chadha’s visa expired in 1972, and none of the three countries would accept him into their territory. He was de facto stateless.

6 of 33

So, what happened in this case from a separation of powers perspective?

8 of 33

The

Congressional Review Act

9 of 33

Congressional Review Act (1996)

Congress passed a law that allows it to overturn recently issued regulations (60 days) by majority vote with limited debate, and with the President’s signature.

10 of 33

Some political background

Part of Newt Gingrich’s “Contract with America”

(image from Atlantic article)

11 of 33

CRA was largely dormant for decades…

13 of 33

2001 – 1 successful use

2017 – 15 successful uses

FYI: On May 16, 2017, Senators Cory Booker and Tom Udall introduced S. 1140, a bill to repeal the Congressional Review Act.

15 of 33

Executive Oversight: OIRA

Within the Office of Management and Budget
Reviews “economically significant” regulations
Agencies submit proposed rules to OIRA and it is a burdensome process.

16 of 33

Executive Order

“Management directive issued by the President with the expectation that agency administrators will comply in the same way that employees in a private company are expected to follow the instructions of their bosses or risk being fired.”

17 of 33

Executive Power

The Constitution says (in Article II, § 2)

[President] 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.

18 of 33

We Decide How Much Power By�Differentiating Between

Officers of the United States: must be appointed with the advice and consent of the Senate

Inferior Officers: specified by acts of Congress, some of whom may be appointed with the advice and consent of the Senate, but whose appointment Congress may place instead in the President alone, in the Courts of Law, or in the Heads of Departments

21 of 33

The Supreme Court Has Interpreted �Article II, § 2 (See, for example, Buckley v. Valeo)

Officer of the United States: “Exercising significant authority” engaging in civil litigation, issuing discretionary opinions, free from day supervision by Congress or the Executive.

Inferior Officer: Merely Investigative/informative work, the type Congress may delegate to one of its own subcommittees. Inferior officers do not “take care that the laws be faithfully executed” (enforce laws). Their work is supervised by Officers of the United States.

22 of 33

Lucia v. SEC: �Is an ALJ an Officer of the United States??!!??!!

What’s going on in this case?
What case law does the Court reflect on as it assesses the facts in this case?

24 of 33

SCOTUS looks at what the SEC’s ALJs DO:

Supervise discovery
Issue, revoke, modify subpoenas
Decide motions
Rule on admissibility of evidence
Administer oaths
Regulate the course of proceedings
Impose sanctions

Authority is comparable to that of a federal district judge conducting a bench trial.

25 of 33

But - ALJ’s “initial decision” is not final until SEC decides to issue an order.

(Does this limitation of power matter? Not to the Court…)

26 of 33

Other instances where the Court weighed various Officer/Inferior Officer factors

Germaine: Civil surgeons (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” (tenure/duration as a factor)
Buckley: Commission members are only officers if they “exercise significant authority pursuant to the laws of the United States.”
Freytag: Tax Court “Special trial judges” were Officers of the United States because: (1)their office is “established by Law” with statutorily prescribed duties, salary, and means of appointment; (2)the judges perform “important functions” in that they “take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders”; and (3)the judges “exercise significant discretion” in performing these tasks. The Court further reasoned that even if the STJs’ duties were not so significant, they would still qualify as officers because they could render final decisions in certain types of cases.

27 of 33

Court Considers: �Buckley’s “significant exercise of authority”

The SEC has statutory authority to enforce the nation’s securities laws, and it delegates this enforcement to its ALJs.
The ALJs have extensive powers— the “authority to do all things necessary and appropriate to discharge his or her duties” and ensure a “fair and orderly” adversarial proceeding.

30 of 33

Removal Powers?

31 of 33

Removal Powers

While the Constitution explicitly assigns appointment powers, it is silent about the power to remove Officers of the United States.
SCOTUS Interprets silence: President has more power to remove officers w/o Senate then to appoint them.
While executive officers must be appointed with the advice and consent of the Senate, Congress “may not involve itself in the removal of officials performing executive functions.”
However, the President’s removal power is not unlimited, and Congress can limit the President’s removal power by statute when there is good cause to do so.

32 of 33

The 2 Big Removal Power Cases

Myers v. United States (1926): President Wilson could dismiss postmaster w/o Senate consent.

“the power to prevent the removal of an officer who has served under the President is different from the authority to consent or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised to the fitness of the nominee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate [...]”

Humphrey’s Executor v. United States (1935): President Franklin Roosevelt could not remove Federal Trade Commissioner.
Humphrey distinguished from Myers: Postmaster is a “solely executive office” but FTC Commissioner has duties and powers related to legislative and judicial powers.

FTC was created by Congress to implement legislative policies and to perform other duties as a legislative or judicial aid. “Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. It’s duties [...] must be free from executive control.” The Court must consider the “nature of the office” and limit the President’s removal powers when an office is performing duties that are legislative or judicial in nature.

33 of 33

Morrison v. Olson: Admin Law SCANDAL

EPA ran the Superfund Program under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. The Superfund is a fund sponsored by a tax on chemical industries, dedicated to cleaning up hazardous waste sites.
Allegations of “sweetheart deals” and misuse of the $1.6 billion fund started right after the fund was established.
Congress requested records re: particular superfund sites. Theodore Olson, assistant AG, advised the President to claim executive privilege to block the investigation and was “deliberately evasive.” (Olson’s “blunders” caused the EPA’s Administrator, Anne Gorsuch Burford, to resign.)
Alexia Morrison was independent prosecutor in the 28-month investigation of Olson.

1 of 33

2 of 33

3 of 33