Separation of Powers – Peterson – Fall 2011
Introduction
 Formalist approach
o Rules that regulate the behavior and powers of the branches are fixed at the time of
Framing and do not vary over time
o Text is determinate and can be clearly understood
o Emphasizes separation of power between branches: Branches shouldn’t interfere with
each other & the only checks/balances are already written in the constitution
o Pessimistic about legislative motives—Congress should not have the power to alter
constitutional power allocation
 Functionalist approach
o Constitution doesn’t create rules, it creates basic principles that may result in
different rules over time as context changes
o Language is indeterminate because Constitutional rules change over time
 Constitution is subject to multiple interpretations
o Founders wanted balanced branches, so rules might change
 Checks and balances more important than separation of powers
 Congress can tinker with the structure of government if need be
 Power of each branch
o 3 zones of executive power (J. Jackson)
 Most authority with explicit statutory power
 Intermediate authority (inherent power)
 Least authority statute take away power
o Generally, for statutory enhancements of power, the Court is more formalist
o Generally, for statutory restrictions of power, the Court is more functionalist (Does
statute prevent the branch from accomplishing its constitutional function?)
Executive
Legislative
Judicial
Statutory Authority
Congress can
Congress passes
Limited by case or
delegate, box can
statutes to give itself controversy
grow indefinitely
more authority
Limited by
bicameralism and
presentment
No statute
President’s inherent
Appropriations
power: In Re Neagle power
Statutory Restriction Congress passes
statutes to limit the
president’s power
The Executive and the Courts
 Marbury v. Madison
o Facts: Marbury filed writ of mandamus under original S.C. jurisdiction to compel
Madison to deliver his commission (last minute Adams appt)
o Madison’s Argument—court has no power to order executive to do something
 Strict separation of power: there is no judicial power over executive
 Problem with strict separation
 Congress has appropriations power over executive
 English common law: court could order king to do things
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o Court
 Marbury has right to the commission b/c it is vested upon signing
 Statute authorizes original mandamus in S.C.
 Statute granting original jurisdiction is unconstitutional
 Article 3 jurisdiction is a ceiling, not a floor for the S.C.
 Congress can’t give S.C. more power than they would have under the
constitution (no court explanation)
 Jurisdiction of the federal court system should be tiered and original
jurisdiction of S.C. is an exception to system
o Trial courts authority checked by appellate courts
o Case or controversy for primary jurisdiction
o Courts have to follow precedent
 Primary vs. Secondary vs. Tertiary discretion
o Primary discretion—limited by rules
o Secondary discretion—limited by appellate courts
o Tertiary discretion—limited by juries
 Courts have the power to review the constitutionality of statutes
 Marshall asserted authority over the executive branch while not having to
enforce it because the statute didn’t allow it—S.C. lacks jurisdiction
Executive branch is subject to what the court says
o Court can hold executive in contempt of court and send marshals to imprison the
president, but the executive has more guns
o Congress can impeach the president, and if she resists, this is a coup
Marbury Dictum: Limitations on judicial power
o Procedural constraints in Constitution
 Case or controversy requirement (injury, proximate causation, remedy)
 Marbury injured by not receiving commission and court can redress
o Textual limitations
 E.g. veto power is textually committed to President, court won’t step in
o Practical limitations
 E.g. Courts may be ill-equipped to decide who has priority where executive is
trying to withhold confidential documents from Congress
o Prudential limitations (political question doctrine)
 Non-discretionary actions are reviewable
 Internal restrictions—in power granting clause
o E.g. can’t veto a year later, procedural restrictions
 External restrictions
o E.g. pardon in racist way is against 5th amendment
 Is there someone with a concrete injury?
 Discretionary political actions are non-reviewable political questions
 E.g. veto, sensitive foreign affairs
Judicial review of separation of powers questions
o War powers clause has mandatory power sharing to make both President and
Congress accountable for war, should court intervene if President sends troops?
o Court is anti-majoritarian branch of government
 Result—legitimacy is tenuous, so it is prudentially important that court
should stay out of cases where their legitimacy is unnecessarily questioned
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 Court should save power to protect individual liberties
o Purpose of separation of powers
 Preventing government from abusing authority to detriment of the people
 Courts can enforce sep. of powers to protect the people
 Branches have incentives to give away power to avoid accountability
Role of lawyer in executive branch (wire-tap legality hypothetical)
o Self interested lawyer, the president’s advocate
 Find a legal argument to allow the president to do something
 President is your boss and could remove you, so you should care about
his/her policy goals; political accountability—president represents people
 Run risk of losing ability of OLC to issue credible decisions
o Sound legal advice/independent lawyer
 President wants to cover himself, and will be reluctant if OLC doesn’t ok
 E.g. people resigned rather than firing special prosecutor during Watergate
 Protecting president from himself—telling president what really is legal
o If president wants to ensure a certain opinion:
 Ask sympathetic attorney, potentially bypassing asst. attorney general
 Ensure confidentiality/consult with interested agencies confidentially
The Executive and Congress
 In Re Neagle
o Facts: Neagle arrested for murder under CA law for killing Terry who assaulted a
S.C. Justice
o Court: Neagle acted within the law and can’t be guilty under CA law
 Protection of judges, despite lack of specific statute, is part of president’s
inherent authority/duty to “take care that laws be faithfully executed”
 Inherent powers include explicit powers from constitution and implicit
authority to go along w/grants of explicit authority
 Power to protect federal officers must exist & executive has power to enforce
the law and protect others to ensure laws are faithfully executed
 A2S1 vests executive power in the President, but doesn’t say “all executive
powers herein delegated” like A1S1 for Congress
 Power to make sure laws are enforced is potentially sweeping
 In Re Debs
o Facts: Debs (union leader in Pullman strike) violated a gov’t injunction (without a
statute) preventing him from talking to strikers
o Court: Executive branch has the power to seek this injunction
 Statutes requires gov’t to carry mail; to carry mail, need RRs; statutes allow
gov’t to protect transport of mail; gov’t can get injunction preventing
obstruction of commerce
 Gov’t wanted injunction over arrest b/c jury would be pro-Debs
o Debs seems clearly wrong—gov’t saying if they can’t get injunction, jury could
prevent conviction; but, right to jury trial, nullification possibility is  on gov’t
 Restrictions on inherent executive power: issues of law, policy, politics, and practicality
o External restrictions: restrictions outside of power granting clauses
 e.g. Takings clause (5th Amendment), 1st Amendment, etc…
o Explicit adjacent powers: e.g. authority granted to another branch (Congress’s Article
1 appropriations power)
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o Implicit adjacent powers: e.g. Executive can’t raise money and spend it
 Iran Contra—can’t sell weapons to get money without Congressional
approval b/c Congress has appropriations power
 Miscellaneous Receipts Act: money earned by gov’tgeneral treasury
 Anti-deficiency Act prevents executive augmentation
 Appropriations power has an implicit anti-augmentation power
U.S. v. Midwest Oil
o Facts: President suspended oil claims in CA and WY, despite statute saying “all
public lands w/oil are free and open” to prevent US from having to repurchase oil
 President’s argument—executive power is so important that if Congress
wants to restrict it, they have to make a clear statement
 Congressional argument—want accountable legislature; inaction is less clear
than a statute, hard to assume inaction means agreement w/president
o Court: Congressional acquiescence in historic executive practice of withdrawing land
makes president’s actions okay (implicit exception to statute)
 Functionalist opinion—law must be interpreted practically
o Ways Congress could possibly not acquiesce to executive practice
 Pass a reinforcing statute (with risk of presidential veto)
 Impeachment, concurrent resolution, testimony about compliance
Youngstown Sheet and Tube
o Facts: President seized steel mills before strike b/c steel was essential in Korea
 President notified Congress and Congress did nothing
o Black’s opinion (Formalist)
 Commander in chief power doesn’t extend to taking over private property
 President has the obligation to conduct war, not legislate
 Congress has the power to regulate labor disputes through law
 “Take Care” power doesn’t give president the power to legislate
 This case belongs in Box 2 or 5 b/c there is no statutory authority
 Congress already specified a way to resolve labor disputes
 Power to legislate doesn’t fit in box 2
o But, nondelegation says line between executive and
legislative powers is blurry, so explanation not great
o Frankfurter’s opinion (Functionalist)
 Distinguishes from Midwest Oil: no congressional acquiescence
 President only did this 3X, Congress rejected conferring power
 But, Midwest Oil deals w/statute, this deals w/constitution
 Hypothetical of president taking military action w/o Congress over time
 Frankfurter: In 1790, president couldn’t do this, but now he could b/c
this power vests in commander in chief
 Scalia: agrees b/c military is different (inconsistent w/originalist)
o Congress has disincentive to protecting war power &
acquiescence for political reasons is a problem
 Pres.: signing statements avoid acquiescence in impingement on authority
o Jackson’s opinion (Functionalist)
 3 categories of presidential authority
 1) W/express or implied Congressional authority
o President acts with his rights + all Congress can delegate
 2) Concurrent authority w/o Congressional action or prohibition
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o President can use his inherent power (between box 2 & 5)
o There’s zone of twilight where Pres. and Congress have
concurrent authority and distribution is uncertain
o Congressional inertia, indifferent, quiescence may change
distribution of power
 3) Congress has restricted president (situation here)
o Ask if restriction impinges on President’s ability to do job
o President can only rely upon own constitution powers –
Congressional powers over the matter
 Congressional restriction of the president (box 23) requires a statute
 Clear statement rule?
 Legislative history?
 Implied occupation of the field? Have that here
o Congress set out 3 policies implying seizure is not allowed
o President told where he could act, can imply where he can’t
 Statutory restriction doesn’t impair president’s constitutional duties
 Vesting clause—power is limited (don’t want George III)
o Specific terms limit executive power (cut back on Neagle)
 Commander in chief authority
o Authority to support armies fails in box 5 with Congress
 Take care clause—operates only as far as there is law
o Possible Youngstown holdings
 Narrow: President’s power to seize property can be restricted by statute
 Broad: Neither take care not vesting clause grant president any power
 This would overrule Neagle—only have Congressional laws
 Intermediate: President’s inherent authority to seize property for military
purposes must give way to Congress’s power to raise and support armies
Combining Powers in the Executive or in the Courts
 Nondelegation Doctrine (functionalist test)
o Concerns
 Aggrandizement
 Don’t want executor of laws making the lawspersonal rights
violations, conflicts of interest, abuse of power
 Political accountability issue (Box 5)
 Schechter Poultry (1935): Congress can’t delegate power to make
codes of “fair competition” to the industry w/ pres. approval
o Nondelegation Doctrine is toothless
 Delegation has not been struck down since Schechter Poultry in 1935
 Congress can’t be an expert on all issues
 Difficult for Congress to pass legislation, this is not efficient
 Congress can’t fill in all the details for the entire federal government
 Hard to draw line between what can and can’t be delegated
 Terms “legislative” and “executive” are too vague
 Wayman v. Southard: hard to say something is not executive power as
executive implements a pieces of legislation
o Limitations on delegation
 Congress must put forth a standard for the agency (intelligible principle)
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 Yakus: intelligible principle upon which exec. can exercise discretion
 Conditional legislation requiring presidential fact finding is okay
 Congress can’t delegate war powers, all appropriations, specific clauses, lineitem veto
 No delegation to people outside the government (Schechter Poultry)
Mistretta v. U.S.
o Facts: Sentencing Reform Act with policy statements has independent commission in
judiciary set sentencing guidelines
o Court
 Sentencing Guidelines are constitutional, since Congress neither (1) delegated
excessive legislative power to the commission nor (2) violated separation of
powers principle by placing commission in the judicial branch
 Sentencing historically shared by three branches
o Scalia’s dissent:
 Accountability problem—delegation is to an independent commission
 Principles are intelligible and subject matter is sufficiently limited
 Delegation problem—Congress is delegating strictly legislative functions
 Sentencing commission not really in judiciary or executive
 Congress can’t delegate legislative power, but can give other branches
discretion in enforcing and judging the laws
 Congress could’ve delegated this to a parole comm’n in executive
o Analysis of Scalia’s opinion
 Congress has not created other “JV Congresses”
 Sentencing comm’n is unique—judges have historically had discretion
 Few powerful interest groups are involved
 Power shared in all three branches
o Aggrandizement or diminished judicial authority (lose legitimacy)
 Arguments for improper aggrandizement
 Courts can make procedural rules, but this is purely substantive
 Policy can only be make in context of case or controversy (A3S2)
o Prevents judicial abuse of individual rights
o Case or controversy has s: juries, appeals, precedent
 Juries:  outside 3 branches of government
 Appeals: limits secondary discretion
 Correction by higher courts on law, not fact
 Precedent: limits primary discretion
 Arguments against improper aggrandizement
 Judges are already writing regulations/deciding sentences
 Judges make policy through decisions, why not prospective regs?
 Comm’ners are not acting as judges, power not to whole judiciary
 Potential diminution of Judiciary
 Respect for judges could diminish if they make political decisions
 But, here, judges are already making these decisions
 DOJ says judges serving other duties is unconstitutional
o Congress could not delegate this to S.C. b/c of case or controversy requirement
 Need a ; courts make procedural rules—binding only on courts
 Sentencing rules are clearly substantive
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Congressional Aggrandizement
 INS v. Chadha
o Facts: Statute gives AG right to suspend deportation, but Congress reserved the right
to reject the suspension (one-house veto)
o Issue: appropriateness of executive arguing that a statute is unconstitutional
 DOJ will defend the constitutionality of any statute unless:
 No good faith argument because law is so clear
 Statute treats on president’s constitutional prerogatives or statute
violates separation of powers
o Court:
 When Congress acts legislatively, bicameralism and presentment
 By rejecting deportation suspension, House is legislating alone
 This is legislative action b/c it affects rights outside of legislature
 Problem: Why can Congress delegate legislative power to executive?
o White’s Dissent: (functionalist)
 If legislation when House votes, why not legislation when AG approves?
 Branches have agreed—both house and president must approve this
 Problem: inaction is not action (Midwest Oil not good law)
 Executive branch can still do its job well
 Legislative veto is  on delegation of power to executive agency
 Problem: Congressional aggrandizement, binding effect to inaction
o Powell’s Concurrence:
 This is a judicial/executive act, so it is inappropriate for Congress
 Congress is not subject to any internal √s to prevent it from arbitrarily
depriving Chadha of right to remain in the country
 Congress shouldn’t decide rights of specific people b/c tyranny of shifting
majority
 Problem: Why can executive wield judicial power?
o Peterson’s Opinion
 Substantive laws must go through bicameralism and presentment
 Easy to distinguish substance and procedure in legislative branch:
substance affects the rights of people outside the legislature
 This is legislative counterpart to case or controversy requirement
 Constitution lists where Congress can act outside bicameralism &
presentment (impeachment, appointments, treaties)
 Problem: no similar restriction on executive branch
 Congress delegates to executive—need balance of power
 Potential solution—allow Congress to veto RM, not adjudications
o Congressional control thru APA (notice, comment, responses,
judicial review for rulemaking, etc..)
o Procedural due process, 5th amendment
o Fast track legislation—report and wait period for all
legislative veto provisions found to be severable
o Appropriations/political power
 Demise of the legislative veto
o 196 statutes have legislative veto provisions—executive adds signing statements
o Unenforceable political deals don’t violate Chadha
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E.g. Congress agreed w/president to fund contras in Nicaragua, but if a group
in Congress decided funding was no longer useful, funding ends
o Formalist approach in prohibiting the legislative veto
 Rejects functionalist approach even through there aren’t procedural
limitations on the president
 Congress can control the rebalancing of the authority of the branches
 Procedures, appropriations, non-mandatory legislative veto
Bowsher v. Synar
o Facts: Comptroller General receives reports from directors and then reports his
conclusions to the president under the Gramm-Rudman-Hollings Act
 CG is an officer of Congress (GAO), removable for cause by Congress
o Court: Law unconstitutional
 Myers: Congress can’t reserve removal power of executive officer
 Chadha: to permit Congressional officer to execute would permit L veto
 CG is a member of the legislative branch
 Congressional removal, control, general DC understanding
 CG’s duties under the Act are executive
 CG is exercising independent judgment and evaluation of reports
o Steven’s concurrence (Peterson’s favorite)
 Congress can’t act substantively thru delegation to lesser rep. of legislative
 Congress can’t act substantively except thru bicameralism & presentment
o White’s dissent
 CG not controlled by Congress (removal only for cause w/pres. approval)
 Executive branch’s ability to perform constitutional duties not impeded
MWAA v. Citizens
o Facts: DC/VA/MD compact controls Dulles airport; Board w/9 members of Congress
has power to veto compacts action
o Court: Board is unconstitutional
 No legislative action (veto of compact’s action) w/o bicameralism & p.
 Congress vets itself or members w/executive or judicial power
 Changing statute to requires board members to be frequent airport users,
registered to veto elsewhere, & w/aviation experience not okay fix!
Congressional commissions
o Congress can form investigative commissions (w/Congressmen and executive
officers) to make recommendations to Congress and White House so long as they
don’t act substantively
President’s Veto Authority
 Veto provision of constitution
o Bill presented to president who can send it back to house in which bill originated
 This house can override by 2/3, then sent to other house for 2/3 override
 Bills not returned within 10 days are law unless Congress, by their
adjournment prevents the bill’s return
o Presidential power of veto
 Difficult to override the veto; President must accept or reject everything
 President may veto for any reason (policy reasons, spite, const. grounds)
 Congress is afraid of being vetoed
 President becomes formal part of legislation, included in process
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 President makes legislative proposals for Congress to consider
o Political constraints on veto
 Presidential fear of being overridden—don’t want to seem obstructionist
 Media would cover this, Congress would be angry
o Singing statements
 Prevents president from having to veto entire bill—president often says he
won’t enforce part of a bill b/c its unconstitutional
 Reasons for not enforcing: recommendations clause, bicameralism and
presentment, unitary executive, authority of foreign affairs, commander in
chief, authority to withhold documents, equal protection, vesting clause
 Problems: Congress can’t override this, Congressional checks like
appropriations and subpoena power
 Solution must be intermediate
 Signing statement reasonable w/legislative veto
 Signing statement not reasonable when based on obscure theories on
issues that are not justiciable
Barnes v. Kline (Pocket veto clause)
o Facts: Congress adjourned its 1st session w/o date to reconvene
 Congress left an agent authorized to receive bills
 President pocket vetoes bill by not signing it
 Pocket veto okay where Congress prevents the bill’s return
o Court:
 This pocket veto doesn’t actually veto the bill
 Distinguishes past case allowing pocket veto
 Adjournment not nearly as long, agent can receive the bill—no long
period were bill is in limbo
 Congress hasn’t prevented return of bill
 This pocket veto is an absolute veto, not consistent w/constitution
o Pocket veto now:
 Inter-Congress pocket veto is effective
 House is not a continuing body; slate is cleaned w/new House
 Intra-Congress pocket veto is ineffective
Line-item veto
o Bills are compromises with unpopular and popular items lumped together
o Bill w/LIV not agreed to by all 3 bodies (president, house, senate)
 Bill may not have been passed as altered by LIV
 LIV unconstitutional and can’t be added to box 1
o LIV Act of 1996
 President can cancel 3 types of provisions once passed into law
 Any dollar amount of discretionary authority
 Limited tax benefits
 Any item of new direct spending
 President must consider legislative history, purpose, and relevant info.
 Procedures: notice to Cong. in 5 days, Congress can pass disapproval bill
Clinton v. City of New York (line item veto)
o Facts:
 Clinton cancelled certain taxes by NY—new item of spending
 Tax relief provision for food refiners—limited tax benefit
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o Court:
 LIV Act is unconstitutional
 President is given the power to strike out a provisions, violating bicameralism
and presentment
o Breyer’s Dissent
 Nondelegation issue—this is not really a LIV
 This is bicameralism and presentment about accountability
o Congress can’t control itself w/special interests & pork
 Historically Congress could separate bills, not gov’t is too bill
 Need for workable government
 LIV Act is okay—no aggrandizement of presidential power
 Congress controls the power
 No encroachment on Congressional power
o Scalia’s opinion
 No violation of bicameralism and presentment
 Nondelegation issue—congress is giving Pres authority to decline to spend
 Congress makes spending discretionary often, but here, the
justification for discretion is not present (changed circumstances)
Discretionary Spending vs. Line Item Veto
o Discretionary spending allowed
 Authority delegated to the president so he can respond to changes in gov’t
o LIV Act
 President can only exercise LIV in 5 days—no changed conditions
 Congress just wants President to cut pork
 Benefits of LIV over discretionary spending
 More accountability because of press
 Predictability and Congress can pass a disapproval bill
Congress’s Power of the Purse
 Article 1, Section 9: Appropriations Power
 Antideficiency Act—without appropriations, government can’t spend money
o Allocation provision ensures money is distributed throughout the year
o Anti-augmentation principle—agency can’t spend more money than authorized by
Congress, even if they make money
o Its unlawful to incur an obligation to spend $ in advance of appropriations
 Exceptions: obligations in advance that are “authorized by law”
o Continued employment of essential federal workers
 Personal services in cases of emergency involving safety of human life or
protection of property
o President has constitutional authority that trumps Antideficiency Act
 Not sure how clear express powers of the president must be
 Congress must appropriate for express powers of President (e.g. pardon)
 U.S. v. Lovett—Generally congress may not use appropriations power to expressly violation
other constitutional provisions
 Clinton/Congress show-down
o Congress let gov’t show down b/c Clinton would not agree
 People blamed Congress b/c this is an area of Congressional responsibility
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Miscellaneous Receipts Act: all settlement money and other money made by the executive
branch must go into the treasury
o Exceptions by law like entry fees from parks to support maintenance
o EPA has ppl. do supplemental env. projects instead of paying $ w/OCL approval
Judgment Fund
o If there is no appropriated fund for law suits, when the government loses a law suit,
money comes form judgment fund
o Exception to fund for contracts—agency can’t breach contract to induce a suit
o Problem: agencies can neglect doing something statutorily required and get judgment
fund to pay for it
 Branch in DOJ protects judgment fund from agency raid
Pigford case:
o Facts: Suit by African American farmers alleging discrimination after SOL
o Discussion: settlement would pay victims of government discrimination
 Government has rock solid defense—statute of limitations
 Politically, it is better to settle
o Result: Congress passed special appropriation, SOL was waived by statute to ensure
compensation for injustice
o Where there is injustice and gov’t has a good defense, pressure should be put on
Congress to pay
 Bad precedent for Attorney General to decide who has a worthy case
Brown v. Califano
o Facts: Kids challenge constitutionality of amendments preventing HEW from forcing
busing; HEW limits federal money to schools who don’t discriminate
o D.C. Circuit:
 Amendment is constitutional
 HEW can withhold funds on grounds other than failure to bus
 Alternatives exist for fed. govt to enforce busing (constitution)
 Where there is a choice of permissible remedies, Congress can choose which
remedy is appropriate through appropriations power
 Congress can restrict president to use a specific remedy for enforcing
the constitution
o Unconstitutional for Congress to say busing is a necessary remedy to constitutional
violations and then not appropriate money to force busing
Judicial task forces
o Congress can restrict judicial task forces through appropriations (e.g. saying no
money is to be spent investigating racial and ethnic bias
o Congress can’t restrict money to courts to regulate internal affairs of judiciary
o Congress could neglect to appropriate $ for lower courts because they are not
constitutionally required
Lincoln v. Vigil
o Facts: Indian Health Service stopped SW program & created nationwide program
 HIS had been using $ for a specific purpose w/Congressional knowledge
 Congress gave HIS a lump sum to spend as they please
o Court: No abuse of discretion
 APA provision says no judicial review of decisions textually committed to
agency discretion by law
 Report approving the program irrelevant b/c no bicameralism & present
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Congress can only change spending discretion through statute
 Not ok to amend APA saying committee reports limit spending
o Chadha problem—need bicameralism and presentment
o There may be political consequences for ignoring reports
 Congress could put an earmark in appropriations bill
 Legislative history not enough to limit spending discretion
o Often scripted & doesn’t represent everyone’s views
Impoundment
o Impoundment = President refusing to spend appropriated money
 Nixon lost—if appropriations are mandatory, they must be spent
o Impoundment Control Act
 If president want to defer $, he must send Congress notice
 Either house can pass a resolution disapproving of deferral (leg. Veto)
o City of New Haven v. US
 Facts: Reagan made 4 policy deferrals
 Court: legislative veto provision unconstitutional and not severable
 Congress wouldn’t have passed law w/o legislative veto provision
 W/o legislative veto, President would have too much power
 Policy deferrals are like LIV allowing pres. to change compromise
Limits of mandatory spending
o Congress could probably force president to build weapons through appropriations
power, but through Commander in Chief power, he doesn’t have to deploy them
o Congress could not appropriate money forcing president to build an embassy
 This would interfere w/foreign relations power
o Curtis Right case: Congress can delegate President right to decide to embargo
shipments of arms to South American conflicts b/c pres. has much foreign relations
power
Impeachment
 6 Impeachment provisions in the constitution
o Art 2, Sec. 4: Impeachment clause for president, VP, and civil officers
 Impeachment by house, trial and removal by senate
 Senate trial: Chief judge presides, 2/3 vote of those present, only
punishment is removal from office and disqualification
 Impeached official can be subject to criminal trial
 Impeachment for treason, bribery, high crimes and misdemeanors
 Do words “shall be removed” mean officers can also be removed for
other offences?
 Courts won’t decide what a high crime or misdemeanor is
 Civil officers include fed. judges (also have Art. 3 good behavior clause)
o Don’t need to be impeached and convicted before prosecuted (fed. judges tried)
o Art 2, Sec. 2, Clause 1
 President can pardon for offense except in cases of impeachment
 Trial of crimes by juries except for impeachments
o Art 3, Sec 1 (No mention of impeachment)
 Federal judges hold offices during good behavior
 Relationship between good behavior and impeachment clauses unclear
 Impeachment might be only method for removing judges
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 SC might be able to remove judge for bad behavior
Impeachment history: House has initiated impeachments 60 times
o Most impeachments go nowhere and are frivolous
o Judges have resigned for clearly impeachment offences
 Mantun accepted bribes, Davis sold his vote, Johnson accepted bribes, forced
employees to accept lodging for pay
o 19 actual impeachments by House
 Senator Blunt acquitted b/c impeachment clause doesn’t apply to senators
 Clinton, Johnson not convicted in the Senate
 8 judges convicted in the Senate
Clinton Impeachment
o Pro-impeachment arguments
 Take care clause—president must obey the laws he enforces
 No multiple standards of impeachment: fed. judges impeached for perjury
 President should be impeachable for private conduct
 Can’t arrest president, but don’t want immunity for president
 Perjury can be equated to bribery—both prevent administration of justice
o Anti-impeachment arguments
 Purpose of impeachment is to maintain a constitutional government
 High crimes and misdemeanors doesn’t mean all crimes
 Framers use “other crimes” elsewhere in the constitution
 Comes from English system where high crime was a crime against the
system of government related to public office being served
 Limit crimes to protect president’s independence from legislature
 Hamilton: high crimes are political acts
 Mason: wanted to include “maladministration” or “subversion of
constitution,” but Madison said this was too vague. High crimes must thus be
more limited
 Perjury doesn’t satisfy standard
 Not act against gov’t, didn’t involve office, in private law suit,
democracy not interrupted
 Motivations for impeachment here are political
 House voted on party lines (both parties politically motivated)
 Different standard for judges
 Good behavior is a lower standard that high crimes b/c judges are
arbiters of the truth (but yet impeachment only for crime crimes)
 No such thing as senate precedent
o Could president be impeached for murder? Yes, b/c murder would interfere with the
ability of the president to do his job
o Role of public opinion—public decision should only sway on really close calls
Judicial Review of Impeachment and Congressional Expulsion
 Grounds for saying something is not justiciable/is a political question (Baker v. Carr)
o Classical—textual commitment to another branch
o Functional—no judicially manageable standards
o Prudential—bad idea practically for court to step in (foreign affairs, policy, etc)
 Colgrove v. Green—apportionment is non-judiciable
 Baker: equal protection clause passage makes apportionment judiciable
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Nixon v. US
o Facts: Judge Nixon impeach with Senate committee hearing evidence and reporting
findings to full Senate
o Nixon: full senate has to try the impeachment
o Court: This claim is non-judiciable
 Classical argument
 Impeachment trial textually committed tot eh Senate
 Since senate has “sole” responsibility, it decides how to try
 Problem: court could review vote less than 2/3; relying on the word
sole is too inconsistent b/c court would review other aspects
 Functionalist argument
 No judicially manageable standards b/c “try” has diff. meanings
 Problem: “try” isn’t more ambiguous than terms like “due process”
o If court stepped in where senate flipped coin, not political ?
o Can guess what Framers meant by the word “try”
o This is really decision on merits: Senate’s trial sufficient
 Prudential argument
 Framers want impeachment w/politically accountable senate
 Judiciary is not politically accountable
o Souter’s concurrence
 Impeachment trial not judiciable unless Senate really gets it wrong
 The word “try” gives Senate a lot of latitude and discretion
Powell v. McCormack
o Facts: Exclusion of congressman Powell accused of financial improprieties
 Elected despite improprieties during previous Congress
 House voted to exclude him by 2/3, Powell not permitted to take seat
o Court: Exclusion was improper
 Expulsion requires 2/3 vote, no specific requirements, no judicial review
 Exclusion requires a majority
 There are 3 requirements for Congress (>25, 7 yrs as citizen,
inhabitant of state where elected)
 This is exclusion (prior congress may have acted differently)
 Court can review this
 Congress can only look to the 3 listed qualifications for exclusion
 3 qualifications are a ceiling (pre-convention precedent—fear of
factions in Congress excluding elected members)
 Problem: merits and political question doctrine are confused
o Court decides merits to see if this is a political question
o B/c 3 qualifications are a ceiling, not a political question
Congressional Immunity
 Speech or debate clause in the constitution
o Protects legislative actions in the house and senate
 Protects more than words; doesn’t preclude review of congressional action
o “They shall in all cases, except Treason, felony and breach of the peace, be privileged
from arrest during their attendance at the session, and for any speech or debate in
either house, they shall not be questioned in any other place”
o Applies with respect to core legislative duties (Gravel)
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 Includes congressional record, floor debates, reports, etc…
Gravel v. US
o Facts: Gravel made arrangement with publishing co. to release Pentagon papers
 Grand jury investigating release subpoenaed one of Gravel’s aides
o Court:
 Member and aide should be treated as one in area of immunity
 Congressional aides lack power to independently affect legal rights
 Pres. aides have more power, and thus lack same immunity as pres.
 Immunity of speech/debate clause doesn’t extend to publishing agreement
 Publishing papers not a legislative action
 Informing the public is not a core constitutional function of the
legislature
 Publication through a formal congressional procedure is immune
Ability of Congress to investigate
o Investigating pardons is not part of a core function of Congress
o Investigating for purpose of investigating and informing the public is not a core
function of the legislature, Congress must justify investigation through a statute
Hutchinson v. Proxmire
o Facts: Proxmire awarded Golden Fleece Awards to gov’t contractors
 Awards to contractors he thought were wasting tax dollars
o Court: Not protected by speech or debate clause/part of core function of Congress
Davis v. Passman
o Facts: Passman fired female Deputy Admin. Asst. b/c she was a woman
 Davis challenged under 5th amendment and sought back pay
o Court: Damages remedy is okay
 5th amendment provides cause of action against congress
 Congress exempted from Title VII & most employment laws
 Congress can’t define who enforces the constitution
 Remedy is damages (Bivens allows damages under 4th amendment)
 Butz and Bivens make constitutional remedy back pay, but unlike
statutory remedies, reinstatement is probably not available
 Court wouldn’t force a congressman to rehire
o Sensitive position of people working close w/Congressmen
o Problem w/telling congress how to represent their district
o Immunity under speech or debate clause
 Any suit like this would fail now b/c of speech/debate clause immunity
 Court says firing of court reporters protected by clause, firing of a cafeteria
worker not protected by clause
 Managing personnel is a core legislative function
FBI investigations of Congressional office
o FBI must inform representative of search and let him sort out materials that are part
of the legislator’s core function protected by speech and debate clause
Executive Immunity
 Nixon v. Fitzgerald
o Facts: Fitzgerald testifies in Congress about cost-overruns & was then RIFed
o Court:
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President has absolute immunity for actions within the outer perimeter of his
official functions (continues after he is out of office)
 Functional concerns
 Don’t want distractions for the president
 Ability to represent the country internationally (respect for office)
 Unique position of president—easy target for suits b/c he affects
personal rights of many people
 Don’t want president to be cautious b/c of fear of civil suits
 Common law immunity based on public policy
 FN 27: Court not addressing whether Congress can limit immunity
 Issue in box 2, but a clear congressional statement moves to Box 3
o Dissent: No man is above the law
o Burger concurrence: Immunity flows from the constitution
 Separation of powers: immunity based on what pres. needs to fulfill his
constitutional duties (derives from Art. 2 vesting clause)
 Now, court suggests immunity flows from the constitution
Congressional statute limiting presidential immunity
o With a clear statement, this is box 3, need to look at balancing test
 Interest of congress in applying this to the president v.
 Burden on president in being able to fulfill constitutional duties
Clinton v. Jones
o Facts: Jones alleged sexual advances, conspiracy, defamation for events before and
unrelated to the presidential office
o Court: No immunity for non-official civil suits
 Action occurred before presidency, so no Fitzgerald justifications
 No hesitancy in office for fear of civil suits
 No floodgates justification, pretrial motions get rid of frivolous suits,
but this isn’t really true
 But, president is distracted from duties
o Past presidents have testifies
o Opponents would love to get president under oath to ask ?s
 Decision has not hugely affected the political system—no suit since
Indictment during presidency
o Nixon’s arguments: distraction from duties, makes president too cautious
o Unclear whether president can pardon himself
o For fed. judges & senators, courts said impeachment doesn’t have to come 1st
 But, entire executive is vested in 1 person unlike judiciary and legislative
Harlow & Butterfield v. Fitzgerald
o Facts: Fitzgerald RIFed after testifying in front of Congress
o Court:
 White House aides don’t have same immunity as the president
 No extension of Gravel b/c congressional aides do things
congressmen don’t have time to do
 Butz—Cabinet officials only have qualified immunity; Dept heads
have congressionally imposed duties, are not extension of pres.
 No absolute immunity for White House aides
 Prosecutors have absolute immunity for prosecutorial duties
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Judges have absolute immunity for judicial decisions
Presidential aide must show that responsibilities of his office embrace
a function so sensitive as to require shield from liability
 White House aides get “good faith” immunity
 Official not immune if he knew or should have known the action
taken within sphere of official responsibility violates const. rights
 A reasonable person would have know the action violated the law
 Objective standard: reasonable white house aide test
o Documents might be sensitive, don’t want discovery
o Speedier trial, quick summary judgment motion
o Subjective standard would put officials through a lot
o Brennan’s concurrence: Immunity shouldn’t apply if official actually knew he was
violating the law (even if a reasonable person would not have known)
Governmental official wants to avoid liability for an action:
o Get DOJ official to write an opinion saying this is not illegal
o Then is gov’t official or DOJ official liable for unreasonable action?
o Obama: bad idea to litigate whether actions in last administration were legal
Mitchell v. Forsythe
o Facts: Mitchell authorized warrantless wiretaps for terrorist plots
o Court: No absolute immunity for Mitchell, even with national security issues
 National security decisions: power can be abused more dangerously and less
obviously b/c actions are secretive
 Mitchell gets qualified immunity: at time, it was reasonable to think wiretaps
were constitutional
 A case was in front of the Supreme Court at the time
 AG gets more protection for prosecutorial decisions
 Avoidance of many suits, other protections in judicial system
Informational Privileges
 Historic Disputes
o 18th Century: Congress wanted docs from Washington about St. Claire expedition
o 19th Century: disputes regularly during times of crisis (e.g. McCarthy trials)
o 20th Century: Watergate scandal
 US v. Nixon
o Facts: special prosecutor subpoenaed tapes from taping system in White House
 Nixon released edited copies
o Court: No absolute privilege for the President
 Privilege not found expressly in the constitution
 Common law privilege for deliberative process docs in civil cases
 Privilege can be overcome by a showing of need
 Const.-based privilege: Art. 2 executive duties need candor
o Presumptive privilege for pres. communications (box 2)
 Balancing test
 Importance of presidential candor v. need for justice
 Presidential need for privilege vs. needs of other branches
 Here, 5th and 6th amendment rights and interests of judicial branch
beat presidential need for privilege
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o Aftermath: Nixon lost unanimously and handed over tapes
 Presidency got presumptive privilege based on constitution (expand box 2)
Congressional right to subpoena documents and witnesses (box 5)
o Privilege asserted for national security docs (by head of department), deliberative
process, info relating to criminal investigations
o Executive can’t refuse document disclosure w/congressional subpoena without the
president asserting the privilege (Reagan statement, followed by subsequent pres.)
 President has political pressure to not assert privilege
o Congress can jail people for failing to accept a subpoena
Debate: Congressional subpoena of 2 memos from DOJ during criminal investigation
o Congressional argument
 Congress has legislative interest in investigating how statutes are enforced
 Need to figure out is statute is satisfying purpose (Art. 1, Sec. 1)
 Reno did not get formal presidential claim of executive privilege
 Rule 6(e) doesn’t apply to Congress (prevents disclosure of info obtained by a
grand jury)
 Congress received similar info in past w/o affecting investigation
 Constitutional underpinnings
 Scope of presidential privilege doesn’t extend this far
 Deliberative process privilege not absolute, need balancing test
o DOJ argument
 Realistically, documents if released to Congress could wind up in press
 Cong. investigation of open criminal investigation could influence result
 Nondisclosure policy for ongoing crim. investigation; Congress can wait
 Constitutional basis
 Congress can’t interfere w/essential executive duty to prosecute
 Individual liberties: Congress could influence investigation, violating
individual liberties (due process violation, damage to reputation)
 Separation of powers: preservation of investigative & prosecutorial duty
 Don’t want congressional pressure on prosecutors
 Want DOJ to be candid
 Danger to web of informants
 Disclosure could give Δ roadmap to investigation
 Executive has discretion won whether to prosecute
o Courts: Congress can only get documents where there is a great need
 Here, no overriding need, Congress can get docs once invest. is closed
 Memos are of little need to framing of legislation
o If agreement not reached: Reno could be held in contempt of Congress
 Neither party wants court to decide this (political question?)
Nixon v. Administrator of GSA
o Facts: Pres. Records Act requires Nixon’s papers to be reviewed in Archives
o Court: Act upheld
 Act does not hinder president from accomplishing constitutional duties
 Pres. interest in withholding doesn’t outweigh congressional interest
1984 Olson Memo on holding executive officials in contempt for privilege assertion
o 1) Congress can’t constitutionally mandate prosecution of particular individual
 Congress has not role in initiating prosecutions of individuals
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o 2) In executive privilege dispute, unconst. to prosecute someone asserting presidential
privilege
 This is a dispute between 2 equal powers; imbalance is impermissible
 If executive prevails, Congress doesn’t get documents
 If Congress prevails, officials go to jail
 Congress has sufficient civil litigation and political weapons
o Executive privilege disputes typically state out at low level
 From legislative aide/low level executive officialchair/president
 If president says no, Congress can start impeachment inquiry
 Consequence—no need to hold officials in contempt
 Balancing test: effect on presidential duties v. need of congress
 Parties usually negotiate disclosure; better solved in pol. process
1986 Cooper Memo
o Any time an executive official is cited for contempt and president has asserted a
privilege, the Attorney General is instructed not to prosecute
Justiciability of contempt in face of presidential privilege assertion
o Always better for parties to negotiate than go to court
 If congress really wants something, they usually get it
o US v. ATT: Court won’t get involved, tells Pres. & Congress to negotiate
o Bates case: Court says no absolute privilege claim, but president and congress should
negotiate
Appointments
 Constitution: Art. 2, Sec. 2, Clause 2
o “He shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the S.C., and all
other Officers of the US, which shall be established by law”
o “Congress may by law vest the appointment of such inferior officers in the president
alone, the courts of law, or in heads of departments”
 Buckley v. Valeo
o Facts: FEC monitors compliance w/ laws, RM and adjudications, enforcement
 FEC members: 2 appted by pres. pro temp, 2 appted by speaker, 2 appted by
president (all 6 must be confirmed by both houses)
o Congressional argument: Congress has authority to do what is necessary and proper
to regulate election process
o Court: appointment scheme is not constitutional
 FEC appointment must comply with Art. 2, Sec. 2, Cl. 2
 Congress lacks authority to interfere w/implementation of statutes
 Congress can’t put appt authority in box 4 (aggrandizement)
 FEC members are officers of the US
 Powers include law enforcement (more than Cong. could do alone)
 Officers of US includes all persons exercising significant authority
pursuant to the laws of the US (“officer” has substantive meaning)
 Appointments provision isn’t default position, but rather has sub. Meaning
 Formalist test (no balancing)
 Strict rule: Congress can’t give itself this power (box 4)
 Appointments clause is exclusive method for officer appointments
o Post-Buckley issues
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OLC said Commission of Centennial of Flight are officers of US b/c they
don’t want to induce Congress to push line
 Bills with potential appointments clause issues go through OLC
 OLC explains to Congress that there’s a clear line w/appts clause
 OLC doesn’t want to say this is nuanced balancing/sub. standards
 Congress can limit president’s appointments powers in small ways
 Congress can say Solicitor General must be learned in the law
 Congress can say members of independent boards must be from both
parties, but likely not more political positions
 Limitations in statutes is congress saying “don’t send us anyone
unqualified for confirmation”
 President can object in signing statements, but yet still comply
Federal Open Market Committee
o FOMC stimulates economy, avoids inflation, sign. power over monetary policy
 Some members appointed by pres., others selected by private board of
directors from federal reserve regional banks
o Constitutionality
 FOMC are officers of the US (exercise significant authority of laws of US)
 Commissioners appointed by private people, so unconstitutional
o Need for independence
 Don’t want president to be accountable b/c he has many political pressures
 Appointments force accountability
 FOMC seems to act technically and neutrally (neither party angry)
 We want neutral experts controlling our monetary policy
o Difficult to challenge
 Declaring FOMC unconstitutional might cause a panic
 Standing hard to prove: can’t prove injury from changes in interest rates
Confirmation: purely a political question
o Over last 25 years, increasingly difficult to get speedy confirmations for both judges
and executive officers (not a partisan issue)
 Now there are so many vacant judge spots, J. Roberts is pleading with
republicans to stop filibustering, not good for gov’t
 President has resorted to recess appointments for short periods of time
 One senator can stop a vote
Morrison v. Olson
o Facts: Ethics in Gov’t Act allows appt of independent counsel
 AG reports to special division who appoints independent counsel
o Court: Appointment scheme is okay (functionalist approach)
 Independent counsel is an inferior officer
 Removal for cause by higher executive officer (AG)
 AG supervised and removed by someone below the president
 Office is limited in jurisdiction, duties, and tenure
 Subsequent cases focus on having someone between the person and
president with supervisory power
 Congressional purpose in having independent counsel
 Avoidance of conflict of interest, need for accountability/indep.
 Need someone other than president to appoint ind. counsel
 Special division is a court of law that can appoint inferior officers
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o Scalia’s opinion: inferior officer is someone who reports to someone below the
president (supervisor must be below president)
Free Enterprise Fund v. PCAOB
o Court uses false assumption that SEC can only be removed for cause
o Since PCAOB cannot be insulated by “for cause” removal by the SEC, the SEC has
control over them, and therefore they are inferior officers
o SEC is the head of a department—no constitutional problem w/plural head
Removals
 Basic removal principles
o Unlike appts., removals are not expressly mentioned in the constitution
o Impeachment of Johnson for violation of Tenure of Office Act
 Johnson removed Sec. of War, ultimately vindicated by Myers
 Myers v. US
o Facts: Myers (postmaster) was removed by direction of the president
 Congressional act limited appt and removal by president by and with advise
and consent of the senate
o Court (Taft): Formalist
 Appointments and removals are different
 Purpose of appts: protection of smaller states
 Purpose of removal: ensure pres. is one executing the laws
 Article 2 power mandates presidential control over removals
 President has the power to execute the laws
 Often, presidential subordinates exercise the pres’s discretion
 President has authority to control/supervise executive officials
 Thus, president needs removal power to enforce his control
 No branch should have implied powers to participate in functions
assigned by the constitution to another branch (formalist)
 Possible functionalist analysis—presidential power requires bright line
 No acknowledgment of congressional interests
 Court puts this in box 3, not box 4 (congressional aggrandizement)
 Focus on potential limitations on inherent presidential power
 Executive uses this to say presidential obligation to take care that
laws are faithfully executed mandates control over executive
 Limitations by congress on ability of president to supervise suspect
o Congress must have substantial interest in doing this
 To many, Myers stands for the principle that congress can’t interfere
with the president’s power over the executive
 Narrowest holding: Congress can’t aggrandize itself through removal
o Dissent
 Brandeis: Separation of powers doesn’t make each branch autonomous
 Holmes: Congress created this office, controls pay, and may abolish office
 Thus, Congress can prescribe the terms of officer
 Presidential duty doesn’t go beyond laws & congress controls laws
o McReynolds opinion
 Imposing limitations on the removal power is a historical practice
 Not all framers or early congressmen thought the same things
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Humphrey’s Executor v. US (1935, 9 years after Myers)
o Facts: FTCA: commissioners may be removed for inefficiency, neglect of duty, or
malfeasance in office; FDR fired Humphreys for political reasons
o Court: For cause removal restrictions are constitutional
 Formalist argument
 Congress wants FTC to be non-political experts making regs.
 FTC is an agency of legislative and judiciary branches
 There is a clear line of separation and the president can be restricted
in his removal of FTC (don’t want pres. interference)
 Functionalist result
 Congress can impose removal restrictions on president w/respect to
certain agencies exercise discretion that should be independent
 Problem: there is no difference between FTC and other executive agencies
 There are now independent agencies insulated from the president
Bowsher v. Synar
o An agency of Congress cannot exercise executive powers
o The rationale of Humpheys Executor can’t withstand Bowsher and Chadha
Morrison v. Olson
o Facts: Independent Counsel removable for AG for cause
 Humphreys/Myers say no limitations on removal for officers exercising
strictly executive functions
o Argument for President: Independent counsel performs solely exec. functions
o Court: removal clause constitutional
 Real question (box 3): is removal restriction of such a nature that it impedes
the president’s ability to perform is constitutional duty?
 If yes, balance executive interest against interest that led Congress to
enact this particular limitation on president’s power
 Court “kisses off” Myers and Humphrey’s Executor rationale
 Impact on the president
 Restrictions are not complete, AG retains some control over
independent counsel (not really true)
 Intrusion on president’s ability to manage prosecutorial function is
limited; independent counsel is limited in scope, jurisd., tenure
 Congress’s reason for limiting presidential removal power
 Conflict of interest for the president
 President’s control creates the conflict of interest
 If limitation was struck down, all independent agencies would be in
danger (slippery slope)
 The need to restrict presidential control in Morrison is about as strong
as possible (conflict of interest because of control)
 For independent agencies, president’s removal important, but there is
congressional need to have officials make scientific judgments
 Problem: independent agencies aren’t really independent
o Scalia’s Dissent
 Taking smallest sliver out of president’s duties is impermissible
 Independent Counsel Act is bad idea
 No effective supervision, IC can have long tenure
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Meaning of for-cause removal
o Meaning hasn’t been tested in courts (broad or narrow presidential discretion?)
 Not politically expedient, president might want lack of accountability for
some regulations (communications, securities)
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o Inconsistency with the president’s interpretation of the law?
o Competency? Consistency in executive?
Free Enterprise Fund v. PCAOB
o Facts: PCAOB can only be removed for cause by SEC who can be removed for cause
(SEC have power to govern securities law)
o Court:
 Accepts that SEC can’t be removed except for cause (debatable)
 Double layer of for-cause removal is unconstitutional
 President is too restricted form control of the PCAOB
 Double layer requires 2 decisions outside the realm of reason
 Formalist opinion—bright line rule, no double for-cause removal
o Breyer’s dissent
 Functionalist—congress needs latitude to change government
 Can’t have strict immutable rules, need flexibility for future
exigencies (Necessary and Proper Clause)
 Congress can create govt offices and structure offices as it chooses
 Double for-cause set up doesn’t affect president’s control over the executive
much; guiding principle of balance can change over time
o Peterson’s hypothesis—opinion is about constitutionality of independent agencies
 Breyer’s response is a defense of administrative state
Framers had a fear of excessive central legislative power
o The current state of government is not a surprise
o Madison thought that Congress would kill everything that needed passed
 Senate will thwart the will of the majority
 This is exactly what the small states wanted
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