1. 1 Chapter 2 Part 2

2. 2 Formal Legislative Review and Oversight of Executive Branch Agencies (1) an appropriations committee, which oversees how the agency spends its budget; (2) a “substantive” committee, which oversees the substance of the agency’s work; and (3) “government operations” committee, which is concerned with the agency’s efficiency and its coordination with other parts of the government. One of each of these three types of committees will exist in both the Senate and the House. Why did they all miss the financial agency failures?

3. 3 Informal Legislative Review and Oversight Members of Congress ask agencies about some grievance of their own or their constituents. all types of contacts (telephone calls, e-mails, and so on) between individual Members of Congress, or the Member’s staffs, or a committee’s staff, and agency officials. Many of these informal contacts relate to discrete agency actions affecting specific constituents. Do you think Congressmen get better service? Is this fundamentally undemocratic? Where does lobbying come in? Charlie Wilson's War?

4. 4 What is an Earmark? Congress enacts a statute that appropriates a lump sum of $10 million for the Indian Health Service (“IHS”) The appropriations statute is accompanied by a report from the appropriations committee saying that IHS should use part of the $10 million to continue operating an existing medical clinic. Is this consistent with the founders intent? The appropriations statute itself, however, does not refer to the clinic. Nor does IHS’s organic statute.

5. 5 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?

6. 6 Executive Power

7. 7 Vesting and Take Care Clauses “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.” Art. II, § 3. Together, these define the source of the president's domestic powers

8. 8 The Unitary Executive Do all of the executive branch powers belong to the president him/herself? In Chadha, Congress gave the Attorney General the power to stay the deportation of an alien Can the president tell the AG's how to rule? Can he only fire the AG? Why does it matter whether the president has the power or the secretary has the power? How does the Appointments Clause fit into this analysis? If it is the president's power, why should the Senate care who he appoints? What if the Senate will not confirm a secretary?

9. Who is a Principle Officer? It is usually clear who is a principle officer, subject to confirmation by the president, in existing agencies. Or if Congress, by law, designates an office as a principle officer. Controversies arise with new agencies, such as the independent counsel in the Morrison v. Olson case. Inferior officers are hard to tell from ordinary employees and there are a lot more of them, so there is more occasion for challenges. 9

10. Free Enterprise Fund v. PCAOB, 130 S.Ct. 3138 (2010) Government agency that regulates accounting firms. Members to appointed by the SEC commissioners, not the President The Court quoted a prior opinion in which it had said that ‘‘whether one is an ‘inferior’ officer depends on whether he has a superior,’’ and that ‘‘ ‘inferior officers’ are officers whose work is directed and supervised at some level by other officers appointed by the President with the Senate’s consent.’ 10

11. Who Controls their Work? The Board’s rules and its imposition of sanctions on accounting firms are subject to approval and alteration by the SEC. Members of the Board are removable ‘‘at will’’ by the SEC Commissioners. Is this sufficient control to establish they the members on inferior officers, thus appointable by the SEC rather than the president? 11

12. 12 President Nixon and the Independent Counsel Great crisis in presidential control. The Saturday night massacre Nixon orders the AG to fire the independent counsel who was investigating Watergate Two people later, he orders AAG Bork to fire him. Nixon's indirect firing of the independent prosecutor was the background for this law What was Clinton's biggest political mistake? Not vetoing the renewal of the Independent counsel law.

13. 13 Morrison v. Olson, 487 US 654 (1988) What did Olson hope to do with his suit? What triggers the appointment of an independent counsel? Who appoints the independent counsel? Why class of officer must this then be? Who can remove an independent counsel for cause? Who can remove that person?

14. 14 The Core Function Standard for Inferior Officers Is the independent counsel an "inferior" official? Does the independent counsel have a policy making role? Is this a critical area for the president to control the exercise of discretion? How does the president retain control? Why will the independent counsel process always be political?

15. 15 What was the key issue in Olson? The limitation of the removal power to good cause, rather than at-will Does this impermissibly interfere with the president's power to carry out the laws? Majority says no, focusing on the preservation of separation of powers Scalia saw this as a stark limitation on the president's power to exclusively control the executive branch.

16. 16 Was Scalia Right? What was he worried about as regards the power of the office? He stresses the broad powers of the IC How did this play out in Whitewater, the Clinton investigation? What would it cost you to be investigated if you were a junior White House counsel?

17. 17 Congressional Determinations If the Congress establishes that the position is an inferior officer, the courts have not second-guessed it. This might change if Congress created an inferior office that was clearly the job of a principal officer. Be careful of circular arguments Just because an officer is not required to be appointed under the appointment's clause, that does not prevent the court from finding that the position is covered by the Appointment's Clause. The real problem is that the court will also not second guess Congress determining that an officer must be confirmed by the Senate.

18. 18 Example: General Counsel to a Cabinet Agency What is the classification of the Secretary of Veterans Affairs? What are the duties of the General Counsel to the Secretary? Is the general counsel an employee, inferior officer, or principle officer of the US? Much more authority than just an employee Does the general counsel make decisions that affect agency policy or enforcement? What is the level and right of supervision by the Secretary?

19. Tenure of Office Act – 1867 If Congress is silent on removal, the officer serves at the discretion of the President This Act limited the right of presidents to remove cabinet members without the consent of the Senate. President Andrew Johnson removed the Secretary of War Was impeached, but not removed by one vote. There are now no limitations on removal of Cabinet Officers 19

20. 20 Myers v. US, 272 US 52 (1926) President Wilson discharged an Oregon postmaster without cause Postmaster sued for back pay under a law passed after the Tenure in Office Act that required the senate to approve appointment and removal of postmasters Why all this concern about a postmaster? Chief Justice and Ex-President Taft wrote the opinion, which found the Tenure in Office Act and related acts an unconstitutional limit on presidential power.

21. 21 Humphrey’s Executor v. US, 295 US 602 (1935) Less than 10 years later, Meyers is again at issue - what is the political change over that period? Why was the FTC controversial at that time? What was the restriction on removing FTC commissioners? How did the lawsuit arise? President fired Humphrey from the FTC Humphrey died and his executor sued for the pay for the rest of his term

22. 22 Myers Redux Why did the court change its view on the removal power? How is a postmaster different from an FTC commissioner? (This has not been important in later cases) What type of agency does this create? Where does the independence come from? Are the agencies independent if the President is in office long enough to appoint all the members?

23. 23 How could the president fire an FTC commissioner? In theory the president could state a cause and fire a commissioner, but it has not happened It has not been an issue because they get hounded out of office if there is cause Does this mean that they always stay when the president in unhappy with them? This is an area where the presidents have not challenged the court

24. 24 The Politics of the Sentencing Commission Started out as a way to moderate unreasonable sentences Sentences were made longer and the judges lost discretion to shorten them. White collar criminals did more jail time First time drug offenders did a lot more time. Limited and eliminated various ways to shorten a sentence (no parole) End result was the opposite of the intention

25. 25 Mistretta v. United States, 488 U.S. 361 (1989) This case attacked the US Sentencing Commission as an impermissible limitation on the Judicial Branch The Commission is an independent commission in the Judicial Branch The members are appointed by the President There are no terms of office The Court upheld the law allowing the president to remove them, even though this is not an executive branch agency

26. 26 The Mistretta Ruling 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

27. 27 Removal Wrap Up What if the statute says an officer serves until removed for good cause, but does not specify a term of office? Think about what would happen if they could not be removed except for cause. Can the head of a department remove inferior officers he has appointed? Unless Congress creates a term of office, if you appoint someone, you can fire them. Terms of office for agency heads create independent agencies These agencies are still executive branch agencies

28. 28 Line Item Veto - Clinton v. City of New York, 524 U.S. 417 (1998) What is a line item veto? Why was a line item veto unnecessary in the founders vision of the operation of federal budget? How have things changed? Why do presidents want them? How might a line item veto cause a president problems? What separation of powers issues does it raise? How did the court rule in this case?

29. 29 Review: Executive Orders Orders from the President to agency heads Sets policy on discretionary decisions Not defined by the Constitution or legislation

30. 30 Types of Executive Orders Domestic Policy Orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm

31. 31 Limits on Executive Orders Cannot change budgetary allocations Cannot change statutory duties The Gag Rule controversy (Rust v. Sullivan, 500 U.S. 173 (1991) Cannot abrogate due process No directing the result of an adjudication Cannot legislate President cannot make binding regulations by Executive Order Cannot use them to change policy for Independent Agencies

32. Regulatory Review and Coordination 32

33. 33 OMB/Executive Order Review Executive branch review done through executive orders The purpose is to “reform and make more efficient the regulatory process"

34. 34 “Principles of Regulation” These principles require agencies to consider many factors when devising a regulation, including the costs and benefits of the regulation; alternatives to the regulation; and the impact of the regulation on state, local, and tribal governments and officials. Each agency designates a “Regulatory Policy Officer” (“RPO”). The RPO reports to the head of the agency and must be involved “at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles [for regulation].”

35. 35 Regulatory Agenda The regulatory agenda is “an inventory of all regulations under development or review” by that agency. The “regulatory plan” identifies “the most important significant regulatory actions” that the agency plans to take in the next year or so. The regulatory agenda (with its regulatory plan) goes to the Office of Information and Regulatory Affairs (OIRA) OIRA circulates it to other agencies and conducts its own review for conflicts OIRA also has meetings with the agency and Vice President to coordinate agency action

36. 36 OIRAOIRA Review of Significant Regulatory Actions Significant regulatory actions are proposed regulations: (1) that have a major effect on the economy; the environment; public health; state, local, or tribal governments; communities; or existing federal programs; (2) that conflict with other agency actions; or (3) that raise novel legal issues or policy issues. OIRA considers whether the planned regulation: complies with the applicable law, the President’s priorities, and the principles for regulation. conflicts with the actions or planned actions of any other agency. OIRA sends the written results of this review back to the agency and involves the president if it cannot resolve problems

37. 37 OIRA and Independent Agencies OIRA reporting requirements, which can be waived OIRA can make recommendations If the agency rejects the recommendations, the president or vice-president are not involved What is the problem with OIRA review of independent agencies?

38. 38 Information (Data) Quality Act The Act requires OMB to issue guidelines to agencies ‘‘for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies.’’ Agencies, including independent agencies, must implement these guidelines Includes provision for individuals to challenge and correct information about themselves Since this is statutory, not an EO, it is Congress modifying the status of independent agencies and poses no constitutional problem.

39. 39 Judicial Review of Executive Review E.O. 12866 states that it “does not create any right or benefit... enforceable at law or equity” against the government or its officials. This prevents direct judicial review of alleged violations of E.O. 12866 This also means that citizens cannot challenge OIRA/OMB review or failure to review. There can be review of actions by OIRA if these otherwise raise constitutional or administrative law issues.