Chapter 2
Part II
Review of the Appointments Process

The ultimate control over an agency is through
hiring and firing agency personnel, or at least
through having that option available
2
Congressional Limitations on
Appointments
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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, as in independent agencies
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
Civil Service

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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
5
Pros and Cons of the Civil Service

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Why is 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
 Health Directors
 Lawyers in specialized areas without private
practice
6
Buckley v. Valeo

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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
7
The Role of the FEC

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What does FEC do that is forbidden to Congress?
How does allowing congress to appoint
commission members undermine separation of
powers?
Was the selection process for the FEC
commissioners constitutional?
8
The Congressional Budget Office (CBO)
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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?
9
Washington Airports Authority v. Citizens for
the Abatement of Aircraft Noise, Inc. (“MWAA”)

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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 this violate Bicameralism and Presentment?
10
The Library of Congress
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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.
Does the congressional composition of the Joint
Committee violate the Appointments Clause? MWAA?
11
Congressional Removal of Executive
Branch Officers
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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?
Could Congress remove the head of the CBO?
12
Legislative Veto - See Chapter 2, Part I
13
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.
What agency is getting hostile "oversight" right now?
14
Informal Legislative Review and Oversight
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Members of Congress enjoy the same right as their constituents to
“petition” their government, including the relevant agency, 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
Earmarks
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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.
The appropriations statute itself, however, does not refer to the
clinic. Nor does IHS’s organic statute.
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?
16
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
17
President Nixon and the Independent
Counsel
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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
18
What was Clinton's biggest political
mistake?

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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
19
Morrison v. Olson, 487 US 654 (1988)
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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 and Halliburton
20
The court created a core function
standard for inferior officers
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Is it an "inferior" official?
 yes, because of the limited mandate
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 is good enough, and this is
exercised through someone (AG) the president
controls
21
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, rejects the use of "quasilegislative/quasi-judicial" labels and focuses on
separation of powers
22
Intimidation by the IC

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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
23
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
What would it cost you to be investigated?
Was Scalia right about the impact of the IC?
24
Edmond v. United States, 520 U.S. 651
(1997)
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The 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.
25
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 clear 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
26
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
27
Stopped here
28
Myers v. US, 272 US 52 (1926)

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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 that the Tenure in Office Act
and related acts an unconstitutional limit on
presidential power.
29
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
30
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
serves two terms?
31
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
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
32
How did the Sentencing Commission
Affect Sentencing?

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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
33
Mistretta v. US – 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 found that the president could remove them,
even though this is not an executive branch agency
34
The Mistretta Ruling
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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
35
Removal Wrap Up (revised)
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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?
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
36
Executive Orders (New Slide)
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Orders from the President to agency heads
Sets policy on discretionary decisions
Not defined by the Constitution or legislation
37
Types of Executive Orders (New Slide)
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Domestic Policy Orders
 http://www.whitehouse.gov/news/orders/
National Security Orders
 http://www.loc.gov/rr/news/directives.html
38
Examples of Executive Orders (New Slide)
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The Steel Seizure Order (Youngstown)
 http://biotech.law.lsu.edu/cases/nat-sec/eo10340.htm
Response to 9/11
 http://biotech.law.lsu.edu/cases/adlaw/homelan
d_security.htm
39
Limits on Executive Orders (New Slide)
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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
40
OMB/EO Review
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Executive branch review done through executive
orders
The purpose is to “reform and make more efficient
the regulatory process.
41
“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].”
42
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
43
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:
 conflicts with the actions or planned actions of any other
agency.
 complies with the applicable law, the President’s priorities, and
the principles for regulation.
OIRA sends the written results of this review back to the agency
and involves the president if it cannot resolve problems
44
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 if the problem with OIRA review of
independent agencies?
45
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.
46
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 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?
Why was a line item veto unnecessary in the
founders vision of the operation of federal
budget?
 How have things changed?
47