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					Chapter 2

            Part II
       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?
                                                                2
       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?
                                                                 3
       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.
   The appropriations statute itself, however, does
    not refer to the clinic. Nor does IHS‟s organic
    statute.
                                                       4
    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?
                                            5
Executive Power
       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
                                                         7
       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 override the AG's decision?

      Can he only fire the AG?

   Why does it matter whether the president has the power
    or the AG 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?
                                                               8
       President Nixon and the Independent
       Counsel

   Great crisis in presidential control.
   What was the Saturday night massacre?
   Why do the liberals really hate Bork?
      He carried out Nixon's order to fire Cox

   Nixon's firing of the independent prosecutor was
    the background for this law


                                                       9
       What was Clinton's biggest political
       mistake?

   Not vetoing the renewal of the Independent
    counsel law
   Hubris - it had been attacking Republicans and he
    was going to have the most ethical administration




                                                        10
       Morrison v. Olson, 487 US 654 (1988)

   Why was Olson suing and what did he want?
   What triggers the appointment of an independent
    counsel?
   Who appoints the independent counsel?
   Why will this always be political?
      Reno and Gore

      Ashcroft/Gonzales and Halliburton


                                                      11
       The Core Function Standard for Inferior
       Officers
   Is it an "inferior" official?
      yes, because of the limited mandate - no policy making

   Is this a critical area for the president to control the
    exercise of discretion?
      no, that is why it is independent

   Does the president retain enough control?
      yes, good cause firing is enough, and this is exercised

        through someone (AG) the president controls

                                                            12
       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, rejects the use of "quasi-
       legislative/quasi-judicial" labels and focuses on
       separation of powers



                                                       13
       Intimidation by the IC

   Scalia saw this as a stark limitation on the
    president's power to exclusively control the
    executive branch
   He pointed out that while the IC may not intimidate
    the president, it will affect executive branch
    officers who are subject to what seems political
    prosecution

                                                      14
     Was Scalia Right?

   What was he worried about as regards the power
    of the office?
      He stresses the broad powers of the IC

   What would it cost you to be investigated?
   Was Scalia right about the impact of the IC?



                                                 15
       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.
                                                            16
       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

                                                               17
       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?
                                                               18
       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
                                                       19
      Myers v. US, 272 US 52 (1926)
   Why all this concern about postmasters?
      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
   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.                              20
     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
                                                     21
      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?

                                                          22
      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
   Does this mean that they always stay when the
    president in unhappy with them?
   It has not been an issue because they get
    hounded out of office if there is cause
   This is an area where the presidents have not
    challenged the court
                                                      23
       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
                                                          24
       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
                                                    25
       The Mistretta Ruling
   Read to 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
                                                             26
       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

                                                               27
       Review: Executive Orders

   Orders from the President to agency heads
   Sets policy on discretionary decisions
   Not defined by the Constitution or legislation




                                                     28
       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




                                                   29
       Limits on Executive Orders
   Cannot change budgetary allocations
   Cannot change statutory duties
      The Gag Rule controversy (Rust v. Sullivan)

   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
                                                       30
Stopped here




               31
       OMB/Executive Order Review
   Executive branch review done through executive
    orders
   The purpose is to “reform and make more efficient
    the regulatory process"




                                                    32
       “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].”
                                                             33
       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
                                                                34
        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
                                                                       35
       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?


                                                     36
       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.
                                                                   37
       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.




                                                         38
       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?
                                                           39