Chapter 2
Part 2
1
Formal Legislative Review and Oversight
of Executive Branch Agencies
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(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
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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?
Is this fundamentally undemocratic?
Where does lobbying come in?
Charlie Wilson's War?
3
What is an Earmark?
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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.
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Enforcing Earmarks
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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
6
Vesting and Take Care Clauses
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“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
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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?
8
Who is a Principle Officer?
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It is usually clear who is a principle officer, subject to
confirmation by the president, in existing agencies.
 Or if Congress, by law, designates an office as a
principle officer.
Controversies arise with new agencies, such as the
independent counsel in the Morrison v. Olson case.
Inferior officers are hard to tell from ordinary
employees and there are a lot more of them, so there
is more occasion for challenges.
9
Free Enterprise Fund v. PCAOB, 130 S.Ct.
3138 (2010)
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Government agency that regulates accounting firms.
 Members to appointed by the SEC commissioners,
not the President
The Court quoted a prior opinion in which it had said
that ‘‘whether one is an ‘inferior’ officer depends on
whether he has a superior,’’ and that ‘‘ ‘inferior
officers’ are officers whose work is directed and
supervised at some level by other officers appointed
by the President with the Senate’s consent.’
10
Who Controls their Work?
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The Board’s rules and its imposition of sanctions
on accounting firms are subject to approval and
alteration by the SEC.
Members of the Board are removable ‘‘at will’’ by
the SEC Commissioners.
Is this sufficient control to establish they the
members on inferior officers, thus appointable by
the SEC rather than the president?
11
President Nixon and the Independent
Counsel
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Great crisis in presidential control.
The Saturday night massacre
 Nixon orders the AG to fire the independent
counsel who was investigating Watergate
 Two people later, he orders AAG Bork to fire him.
 Nixon's indirect 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.
12
Morrison v. Olson, 487 US 654 (1988)
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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?
Who can remove an independent counsel for
cause?
Who can remove that person?
13
The Core Function Standard for Inferior
Officers
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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?
14
What was the key issue in Olson?
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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.
15
Was Scalia Right?
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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?
16
Congressional Determinations
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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.
17
Example: General Counsel to a Cabinet
Agency
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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
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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)
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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.
20
Humphrey’s Executor v. US, 295 US 602
(1935)
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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
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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?
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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
23
The Politics of the Sentencing
Commission
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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. United States, 488 U.S. 361
(1989)
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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 upheld the law allowing the president to
remove them, even though this is not an executive
branch agency
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The Mistretta Ruling
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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
26
Removal Wrap Up
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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
Line Item Veto - Clinton v. City of New
York, 524 U.S. 417 (1998)
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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?
28
Review: Executive Orders
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Orders from the President to agency heads
Sets policy on discretionary decisions
Not defined by the Constitution or legislation
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Types of Executive Orders
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Domestic Policy Orders
 http://www.whitehouse.gov/briefingroom/presidential-actions/executive-orders
National Security Orders
 http://www.fas.org/irp/offdocs/direct.htm
30
Limits on Executive Orders
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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
31
Regulatory Review and Coordination
32
OMB/Executive Order Review
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Executive branch review done through executive
orders
The purpose is to “reform and make more efficient
the regulatory process"
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“Principles of Regulation”
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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].”
34
Regulatory Agenda
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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
35
OIRA Review of Significant Regulatory
Actions
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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
36
OIRA and Independent Agencies
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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?
37
Information (Data) Quality Act
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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.
38
Judicial Review of Executive Review
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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.
39