Controlling delegations: legislative vetoes and the like at the state level:

1. Controlling delegations: legislative vetoes and the like at the state level: • Legislative veto: Courts usually require a state constitutional provision allowing such a veto; if no provision, they strike it down using the reasoning in Chadha. • “Mandatory approval” legislative rules review process: Special legislative comm. reviews all agency rules w/ power to veto, suspend or delay rules. Most courts strike down provisions as unconstitutional absent a specific constitutional provision allowing them.See Missouri example.

2. Missouri and mandatory rules approval • Missouri statute created Joint Committee on Administrative Rules (JCAR) – consisted of five senators/five representatives. Under the statute: • Agencies submitted rules to JCAR for approval/disapproval before publication. • If JCAR didn’t disapprove the rule w/in 20 days, it could be published as final. • If JCAR disapproved a rule, it reported its finding to the full Gen’l Assembly, which could ratify a disapproval by a separate resolution. G.A. could also revoke current rules by joint resolution. • Mo. Coalition for the Envio v. JCAR, 948 S.W.2d 125 (1997): Mo’s mandatory rules approach violates state constitution’s bicamerality and presentment requirements

3. Line-item vetoes in the states: • Most governors have the line item veto • Only seven states don’t give governor some kind of line item veto. • Missouri governor has line-item veto - Mo Const. Art. IV. § 26: Governor may object to one or more items or portions of items of appropriation of money in a bill, while approving other portions of the bill except governor may not reduce appropriations for public schools or payment of principal and interest on public debt. • Generally interpreted as meaning that governor can strike: • Funding for particular item, funding for entire program or agency, &/or language accompanying an appropriation (if appropriation is stricken), • Governor can suggest reduced appropriations amounts for legislature to consider • Governor must send statement of objectionable items back to G.A. which considers each objection separately. • G.A. can override line-item veto – Most think that 2/3 majority is required but it is not clear from text of Mo. Constitution.

4. The relationship between the President & agencies • Art. II, Sec. 1 – vesting clause; Art. II, Sec. 3 – take care clause • To what extent do these give President control over actions of agencies? • Specific Areas of Inquiry for this Class • Does/should President control appointment/removal of agency officials? • Does/should President control day-to-day operations of agencies? • Can Congress interfere with Presidential control of these areas? • Does the kind of agency matter in answering these questions? • Department (aka Executive agency) • Single-person Head; Presidential policy-making role; have rulemaking, enforcement or adjudicatory functions (but often doesn’t have all of them) • Independent agency • Multi-member commissions (usually); involve regulation of the economy (transportation, commerce, labor, trade, investments...); usually have all rulemaking, enforcement & adjudicatory functions

5. The President and Appointments – Art. II, § II, cl. 2 [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest 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. • Via what methods can “Officers of the U.S” be appointed?

6. Buckley v. Valeo – the statutory scheme • FECA of 1971 (& 1974 amdts) created the Federal Election Commission w/ purpose of regulating campaign finances and political activities of candidates for federal political office • The Commission had 8 members: • 2 ex officio (non-voting) • 2 appointed by President • 2 appointed by President pro tem of Senate • 2 appointed by Speaker of the House • All voting appointees were subject to confirmation by a majority of both houses. • Various candidates for political office sued claiming that FECA violated the Constitution.

7. Buckley – the Supreme Court holding: • FECA violates appointments clause because FEC cmmssr’sare “Officers of the US.” If that’s true, why did their appointment violate the Constitution? • What is an “Officer of the United States?” • Are all employees of the federal government “Officers of US”? How does the SCT decide that FEC commr’s are “Officers”? • Why do the commissioners’ powers suggest that they are “Officers of the US” (either inferior or principal) rather than employees? • Don’t some of those powers look legislative in nature – why are the commissioners acting as Officers rather than adjuncts of the legislature when they exercise those powers?

8. What about using the necessary & proper clause in this context? • Why might Congress have wanted to create the FEC commission with the make-up of actors that it did? (Obviously, it had to have known there were potential constitutional issues). • Why can’t Congress argue that Art. I, Sec. 8, cl. 18 allows it to enact laws necessary and proper to carry into being its powers? • What problems does the appointments scenario raise when making a “necessary & proper” clause argument to support Congress’s creation of the FEC in Buckley?

9. Congressional power grabs & the Constitution – lessons from Chadha & Buckley • The appointments clause clearly contemplates someshared authority between Congress and the executive re appointment of agency officials: • Senate must CONSENT to presidential appointments of officers unless • Congress VESTs appointment of INFERIOR officers consistent with Art. II, Sec. 2, cl. 2 • BUT congressional attempts to vest appointment authority in ITSELF violates clear constitutional provisions and the delicate balance of separation of powers that those provisions represent. • Similar to Chadha’s reasoning barring Congress’s attempt to bypass bicamerality/presentment requirements and vest authority in itself • Other provisions support this reasoning - Art. I, Sec. 6, cl 2. (p. 68) prevents congresspersons from sitting as Officers of the U.S. and vice versa • Don’t want members of either branch to sit within the other and aggrandize power meant to be kept separate

10. The President’s removal authority – the early years Few constitutional provisions specifically address anybody’s power to remove executive Officials: • Art. II, Sec. 4 – Removal of Pres, VP &all civil Officers for Treason, Bribery, High Crimes & Misdemeanors after Impeachment and conviction • Art I, Sec. 2, cl. 5 – the House can Impeach • Art. I, Sec. 3, cl. 6 – the Senate can try Impeachments • NONE of these provisions deal specifically with the PRESIDENT’s authority to remove those officials • Does that mean the President has NO ability to remove agency officials other than that stated? • People often look to Art II, ' 1’s vesting clause; Art II, ' 3’s “take care” clause to support President’s authority in this area • Also what role does Congress have in the removal of Officers OTHER than through impeachment?

11. Myers v. United States (1926) • Myers appointed Postmaster of Oregon (w/ advice & consent of Senate) in 1917 for 4 year term. Postmaster General fired him in 1920 on orders of the President • Firing violated statute which provided for removalof Postmaster only on advice and consent of Senate; Myers sued for back pay, claiming PM General had violated the statutory discharge requirements • SCT rules statute unconstitutional because it interferes with Presidential authority over Officers. Why? • Can the President exercise control over all duties of other executive officials – e.g., a decision that grants or denies a license to a particular person? • Anything else the SCT is worried about besides congressional interference with executive power?

12. Humphrey’s Executor v. United States (1935) • Humphrey was appointed an FTC commissioner for 6-year term under Hoover. FDR asked him to resign because he “wasn’t on the same team.” He refused. FDR fired him. Federal law limited presidential removal of FTC commissioners to incidents of inefficiency, neglect of duty, or malfeasance of office. • Humphrey’s estate sued for back pay during the period it claimed he was unlawfully fired. FDR claimed he had the authority to fire an officer of the US (see Myers). • Why does SCT rule that the statute didn’t violate the Constitution? How is this situation different from Myers or can they be reconciled?

13. Bowsher v. Synar (1986) • Gramm-Rudman Act set statutory deficit reduction goals. • G-R Act gave Comptroller General (head of GAO, located in legislature) the responsibility of surveying and reporting to Congress on whether deficit reduction goals were being met by the recipient of federal funds. • If goals were unlikely to be met, law directed C.G. to calculate the amount by which agencies should reduce spending below appropriated levels. • Those calculations could sometimes be binding on agencies because President was required to issue an order based on C.G.’s recommendations • C.G. was nominated by the President from a list of 3 people recommended by House/Senate leaders. • C.G. was removable by impeachment or by joint resolution of Congress for inefficiency, neglect of duty, or malfeasance.

14. Bowsher’s holding • Gramm-Rudman Act is unconstitutional. • Why can’t the Act’s deficit reduction functions be delegated to the C.G.? • Why isn’t this a case of Congress delegating functions to someone who is an “adjunct of Congress (as SCT intimated in Buckley)?” • How, exactly, is the C.G. exercising executive power so that he/she is an Officer of the United States?

15. After Myers, Humphrey’s Executor &Bowsher – generally accepted propositions (until discuss later cases) • President has extensive (nearly unlimited?) authority to remove purely executive officers (both principal and inferior) • Stems from executive authority vested in the President (Art. II, Sec. 1) and the President’s need to faithfully execute the laws (Art. II, Sec. 3) • Congress can condition the removal of Officers of independent agencies • Such agencies need to be insulated from sway of politics and threat of removal at a whim • Congress cannot itself participate in the removal of any Officers except through impeachment • Example – can’t require advice and consent of Senate (Myers) • Includes independent agency officials who exercise executive power (e.g., enforcement powers) - can’t be removable by Congress or w/ A&C of Senate (this is a logical extension of Bowsher)