Constitutional Law I

Front 1

Morrison v. Olson

Back 1

The Executive Appointment Power
(article II)
Rule: Congressional assignment of the Appointment power to the judicial branch is not unconstitutional when the office in question is that of an "inferior officer."

Why this position (created by Ethics in Government Act of 1978, special prosecutor, to be appointed by Federal Court "Special Division" by request of the Attorney General) was inferior:
1) subject to removal by Attorney General
2) empowered only to perform limited duties
3) office limited in jurisdiction (by scope granted by Special Division.)
4) office limited in tenure (ends when the task ends)

Dissent (Scalia):
The executive power should be with the President. Principal or inferior, prosecution is an executive function.

Front 2

Under the Executive's Article II powers, what are the distinctions made between types of appointees?

Back 2

First, officers may be Principal (in which case they must be appointed by the President) or Inferior (in which case Congress can assign the power of appointment to the judiciary or to department heads.)

Second, there are quasi-legislative/judicial officers (who, modernly, can only be removed by the President if Congress has explicitly assigned him that power.)

Front 3

INS v. Chadha

Back 3

Legislative Veto and Nondelegation.
Rule: Congress, if it is to act, must legislate via constitutionally mandated channels.
In creating the Attorney General's position, Legislature had reserved for itself a legislative veto, allowing one house to overturn the AG's suspension of a deportation. Chadha was about to be deported, but then his deportation was suspended by the AG, but then the HoR vetoed. So, he sued.
Functionalist (White, Dissent) versus Formalist (Berger/Powell, Majority/Concurrence) views.
Formalist: Act violated Constitutional requirements of Presentement and Bicameralism for legislation.
Functionalist: Legislative veto is a widespread practice, and necessary if Congress is to be free from thinking out all contingencies for every power it delegates. Also, the only reason why legislative veto isn't enumerated in the text of the Constitution is that the founders did not anticipate the size of the administrative state.

Front 4

What are the four situations in which the legislative wings may act outside of the legislative process?

Back 4

- House initiates impeachments
- Senate conducts impeachment proceedings
- Senate ratifies treaties
- Senate approves appointments

Front 5

Describe the progression of the Removal Power.

Back 5

Removal Power not set out clearly by the Constitution and thus has been established by the courts over time. Generally, the progression has been one where the Removal Power has moved from the hands of the President to the hands of Congress.

Myers v. US (1926): President has exclusive power to remove executive officers.

Humphrey's Executor v. US (1935): Where a federal appointee has a quasi-judicial/legislative role, Congress may limit or completely block the President's removal power.

Wiener v. US (1958): Where a federal employee holds a quasi-judicial/legislative role, the President has no removal power unless explicitly granted by Congress.

Front 6

Myers v. US

Back 6

Removal Power - Congress versus the Executive
Oregon Postmaster refused to give up office, sued for unpaid wages.
Early Rule: The President has the exclusive power to remove executive officers.
1) because he is in the best position to do so (distinguished from appointment power, in which case Congress and the President are on equal footing to evaluate the officer.)
2) textual interpretation: Article I enumerates the powers of Congress, where as Article II states the powers of the Executive in broad terms. Thus, in the absence of any other text, the Executive power should be interpreted more broadly (the removal power would have been enumerated, had it been intended for Congress.)

Front 7

Humphrey's Executor v. US

Back 7

Removal Power - Congress versus the Executive
Intermediate Rule: Where a federal appointee has a quasi-judicial/legislative role, Congress may limit or completely block the President's removal power.
In this case, the FTC Act created the office of Commissioner of the FTC, whom Roosevelt attempted to remove simply for reason that he wanted his own man in the post. This was not a reason that Congress had enumerated for executive removal, and so removal was not allowed.
Distinguished from Myers in that this was a quasi-judicial/legislative role. Myers now applied only to "purely executive officers."

Front 8

Wiener v. US

Back 8

Removal Power - Congress versus the Executive
Modern Rule: Where a federal appointee has a quasi-judicial/legislative role, the President has no removal power unless explicitly granted by Congress.
War Claims Act of 1948 - another attempted removal of an officer. In this case, the act had no provisions for when executive removal power would apply. Even here, the court rules that the President does not have removal power, as the officer is serving in a quasi-judicial/legislative role. The court reiterates the need for such officials to be independent of the Executive - it's a separation of powers issue.