Seperation Of Powers Between President And Congress.

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What was the non-delegation doctrine and what was its function?

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a. Doctrine limiting how much Congress may delegate to an administrative agency
i. Driven by separation of powers
b. Functions of the nondelegation doctrine
i. Ensured that the fundamental policy choices would be made by the legislature and not by officials within the legislative branch
ii. Promoted predictability for those burdened or benefited by the legislation
iii. It tended to work against arbitrariness or caprice on the part of administrators b/c it cabined their discretion in the enforcement process

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Schecter's National Industrial Recovery Act

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i. National Industrial Recovery Act
a. Attempted to permit representatives of labor and management in each industry to meet and design codes of "fair competition." The goal was to help stabilize wages and prices and help prevent the decline of both, thus restoring confidence in industry and boosting the economy
b. The act's declaration of policy referred to Congress's desire to promote cooperative action among trade groups, to maintain united action on the part of management and labor, etc.
c. The President was supposed to approve such codes if he made several findings including:
1. That there were "no inequitable restrictions on admission to membership"
2. That the codes were not designed to promote monopoly or to oppress small enterprises

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Schecter Poultry Co v Ryan

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a. Involved the "live poultry code," which contained maximum hour and minimum wage provisions and prohibited various practices said to be "unfair methods of competition."
b. Code involved provisions about sale of unfit chickens and a prohibition against allowing customers to select particular chickens
c. There must be "intelligible principles" in the enabling statute so that the AA does not craft the policy
d. Holding:
1. A delegation of legislative authority to trade groups is utterly inconsistent with the constitutional prerogatives and duties of Congress.

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INS v. Chadha Facts Issue Holding

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i. Facts: Congress was given the power by Congressional statute to veto the attorney general's decision to suspend deportation proceedings initiated by the INS by either the House or the Senate passing a resolution stating that it does not favor the suspension of such deportation.
ii. Issue: Whether the unicameral veto of the AG's decision is constitutional
iii. Holding: To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of BOTH Houses AND presentment to the President.

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Chadha Rationale 1 "Severability" of the Legislative Veto

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a. Severability
1. Rule: The invalid portions of a statute are to be severed unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, [SO THE COURT SEVERS THE VETO WITHOUT INVALIDATING THE LAW]
2. The act explicitly provided for severability.

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Chadha Rationale 2 - Essentially Legislative Action, Bicameralism

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b. Said that there are certain kinds of actions that are essentially legislative in purpose or effect
1. These actions can only be taken pursuant to Article I
2. The effect of the legislative veto was to “alter the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch official and Chadha.”
3. "When we the court think a certain kind of action is legislative in nature…" [bicameralism is required]

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Chadha Rationale 3 Presentment Clauses

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1. Requirement that all legislation be presented to the President before becoming law was uniformly accepted by the founders.
2. Reasons for presentment
i. Profound conviction of that the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed.
ii. Guards against impulses that are unfriendly to the public good
iii. Preserve national character of legislation - President is more representative of the entire nation.

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Chadha Rationale 4 Bicameralism

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1. No law may take effect without the concurrence of the prescribed majority of the Members of both Houses.
2. Why Legislation should not be enacted unless it is carefully considered
3. Want the two bodies to be as little connected with each other as possible
e. Application to this case
1. Powers of government divided into 3 distinct, but not hermetically sealed, categories
2. The action taken by the House was essentially legislative in purpose and effect
3. Rule: Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.
4. Textual analysis: The framers carefully limited the 4 circumstances in the Constitution where an action of one house of the legislature may be binding (House – impeachment, Senate – impeachment trials, Senate – Presidential appointments, Senate – treaties)
i. Vetoing a decision by the AG is not one of them.

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Chadha Dissent Rationale

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a. Legislative vetoes are very common in modern legislation.
b. The legislative veto was not included in the Constitution, but the framers could not have anticipated the complexity of the federal government today.
c. If Congress may delegate lawmaking power to independent and Executive agencies, it is most difficult to understand Art. I as prohibiting Congress from also reserving a check on legislative power for itself.
vii. Note: Problem w/ majority's decision - If a one house veto is essentially legislative in nature, then it is essentially impossible to conclude that agency rulemaking is not legislative in character.

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After Dissent, how can congress control Administrative Agencies?

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i. Bicameral statute w/ presentment
ii. Congress controls the purse strings to administrative agencies
iii. Informal political checks, such as oversight committees
iv. Power of President to appoint agency heads – subject to Senate approval

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Clause Conferring appointment power

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a. Article II, § 2, Clause 2: “…he shall nominate, and by an with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Counsuls, Judges of the SC, and all other Officers of the US, whose appointments are not herein otherwise provided for, and which shall be established by law:
i. But the Congress may by Law best the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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Myers v. US

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a. Involved a statute that provided that postmasters "shall be appointed and may be removed by the President and with the advice of the Senate." President Wilson attempted to remove Myers, a postmaster before the expiration of his term.
b. Holding: Removal was lawful without the consent of the Senate
c. Rule: Any Congressional limits on the removal power are unconstitutional
d. Rationale:
i. The power to remove is incident in the power to appoint.
ii. Taft looked to debates of the first session of Congress and concluded that it was the framers’ intent to place the removal power in the President.
iii. The attempted limitation on Presidential removal power was unconstitutional under Article II.
iv. The Court relied on several conclusions
a. The act of removal is itself executive in nature and must therefore be performed by the President
b. Under the "take Care" clause, it is the President, not his subordinates, who must take care that the laws be faithfully executed
c. Article II vests executive power in the President, not subordinate officials.
e. Note: Myers is supported by the decision to have a unitary executive branch.

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a. Humphrey’s Executor v. US

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i. Facts: Involved a statute providing that members of the FTC could be removed by the "President for inefficiency, neglect of duty, or malfeasance in office." The history of the statute indicated that the legislative goal was to entrust regulatory decisions to a body on nonpartisan "experts," insulated from political pressures.
a. President Roosevelt removed Humphrey from office, contending that the limitation of the President's power to remove was unconstitutional under Myers (believed that any subordinate official served, by virtue of article II at the pleasure of the President).
ii. Holding: The removal was invalid. Congress has the power to create quasi-legislative or quasi-judicial agencies and fix a period during which their heads shall continue in office, and to forbid their removal except for cause in the meantime.
iii. Rationale:
a. Court distinguished and confined Myers
1. Noted that the postmaster is a serves a purely executive function while the FTC is an administrative body created to carry into effect legislative policies. The FTC cannot be seen as an arm of the executive.
2. The Commission acts quasi-legislatively and quasi-judicially

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Weiner v US

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court overrules removal of officer of War Claims Commission, holds that pres cannot remove an officer of an agency even where congress has not expressly limited pres removal power, as it did in Humphrey’s, because certain agencies require complete independence from the political influence in order to function. “Congress’s intent was for the War Claims Commission to award claims based on merit, not political influence.”

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Bowsher v Synar Facts Issue 1 and Holding 1

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i. Facts:
a. The Comptroller General is the head of the General Accounting Office. He is nominated by the President from a list of three individuals recommended by the Speaker of the House and President pro tempore of the Senate. He is removable only at the initiative of Congress -- impeachment (for "Treason, Bribery, or other high crimes and misdemeanors") of by joint resolution of Congress (subject to a Presidential veto).
ii. Issue1 : Whether the assignment by Congress to the the Comptroller General of the US of certain functions under the GRH Act violates the doctrine of separation of powers.
iii. Holding1 : The functions of the CG are plainly executive and therefore are he may not be entrusted with such powers because he is removable by Congress.

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Bowsher Rationale 1

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iv. Rationale:
a. Structure of the Constitution
1. Does not permit Congress to execute the laws; it follows that Congress cannot grant an officer under its control what it does not possess
2. To permit an officer controlled by Congress to execute laws would be, in essence to permit a congressional veto
b. What about that argument that the Comptroller is independent and not subservient to Congress
1. The Budget and Accounting Act of 1921 permits removal for "inefficiency" "neglect of duty" or "malfeasance" -- these terms are very broad
2. Original intent: founders rejected language that would allow impeachment of executive officers for "maladministration.”

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Collateral Holding of Bowsher

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In so holding the court also held that the court cannot grant itself the power to remove an executive officer. Where the officer is given executive powers, such as here, the president alone must have the removal power, even if checked by congress.

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Buckley v. Valeo

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a. Facts: The Federal Election Campaign Act created an 8 member Federal Election Commission to oversee federal elections. 2 members were appointed by each of the following: the president pro tempore of the Senate, The Speaker of the House, and the President.
i. The commission was authorized to investigate, to maintain records, to make rules governing federal elections, and to impose sanctions on those who violated the act and its own regulations.
b. Holding: Vesting a commission whose members were appointed in this manner with some of these functions violated the appointments clause of Article II of the Constitution, grants congress the power to appoint power for inferior officers in 1. The President, 2. Heads of departments, or 3. The lower federal Courts.

c. Rationale:
i. President Pro Temp of the Senate is not one of the “Heads of Departments”
ii. Rule: Any appointee exercising significant authority pursuant to the laws of the US is an "Officer of the US and must, therefore, be appointed in the manner prescribed by the appointments clause.
iii. Heads of Departments: Departments refers to departments in the executive branch, not bodies of Congress.
iv. Insofar as the powers of the Commission are essentially for an investigative or informative nature, that power may be delegated to a Congressional committee