Chapter 2
Part II
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?
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.
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?
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5
Executive Power
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
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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 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
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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?
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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
10
Morrison v. Olson, 487 US 654 (1988)
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This is a fight over whether an independent counsel is a
principle or inferior officer
 How will that affect the procedure for appointment?
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
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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?
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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
13
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
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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?
15
Edmond v. US, 520 U.S. 651 (1997)
The Supervision Test
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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.
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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
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
Advice and Consent Paralysis
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How does a new president exercise control over
the executive branch?
How can the requirement of advice and consent
allow the senate to block this control?
Exacerbated by the virtual filibuster
If congress is not in session, the president can
make an appointment - recess appointment - that
does not need approval until the next term of
congress (a year, usually)
19
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
20
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 the Tenure in Office Act and
related acts an unconstitutional limit on
presidential power.
21
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
22
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)
How does having staggered terms for commissioners
create an independent agency?
 Where does the independence come from?
 Are the agencies independent if the President is in
office long enough to appoint all the members?
 Are they still in the executive branch?
23
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
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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
25
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
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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
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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
28
Stopped here
29
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
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Limits on Executive Orders
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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
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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].”
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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
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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
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
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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.
39
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?
40