Legislation and regulation

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  1. Legislation and Statutory Interpretation

    1. Sources of Statutory Interpretation

      1. Text: The starting point of the analysis of any statute

        1. There is a presumption of “ordinary meaning,” which has come to mean the dictionary definition, but can also be the colloquial use of a term or phrase

        2. Terms of art: words that have one meaning on the street and a different meaning within a specialized community (for example, a scientific meaning, see Nix v. Hedden).

        3. Context within the statute:

          1. Meaning derived from other sections of the same legislation

          2. Meaning derived from other statutes

      1. Legislative History (in descending order of weightiness)

        1. Committee Reports and Conference Committee Reports: considered the most reliable source for Congress’ views on the purpose of the legislation.

        2. Statements by sponsors or floor managers: Court presumes that the sponsor is most likely to know the details of the intent/purpose of a bill, but because they don’t reflect consensus, they are given less weight.

        3. Floor Debate (statements by proponents and opponents): The statements of individual legislators are not typically taken very strongly into consideration because it is difficult to reconcile the various views expressed with those that are not. This includes statements made during hearings

        4. Other tools that are sometimes considered:

          1. Rejected Proposals: Courts occasionally look to past versions of bills to inform their understanding of what made it into the final version

        5. Positions about the Admissibility of Legislative History:

          1. Should always be looked at if it exists since no law prevents probative history from being introduced (American Trucking)

          2. Should never be consulted: classical rule in English common law, American rule until the late 19th century when Aldridge changed it. It is current admissible (Holy Trinity)

          3. Plain meaning: admissible if and only if there is statutory ambiguity, the Supreme Court’s use of legislative history has significantly declined, although there is no clear current view, the plain meaning rule typically prevails.

      2. Subsequent legislation/(in)action (S = statute, I = interpretation, Ξ = identical)

        1. Ratification: Idea that if the legislature passes an identical statute following the Supreme Court’s interpretation of a prior statute, with the knowledge of that decision, it is Congressional authorization of the Court’s interpretation. This idea is problematic because while precedent can be overruled, ratification cannot. This is often criticized because Congress is the most agenda-constrained/time-sensitive branch. (Thus, ratification, though a logical inference, is not necessarily the appropriate one.)

          1. S1 (x or y)  I2 (x)  S3 Ξ S1  I4 (x or y?) (Ratification would say x)

        2. Acquiescence: Idea that silence equals consent such that if judicial review is made interpreting a statute a particular way and Congress does not act to strike it down, we should assume that it is Congress’ way of clarifying their intention.

          1. Weaker than ratification because there is no affirmative act. Additionally, the structure of gate keeping in Congress may mean that even if there is a disagreement about the Court’s interpretation, it may not be clear through legislative history simply because of a lack of authority.

          2. Article 1, Section 7 of the Const. sets up bicameralism and the formation of bills. Critics of acquiescence say that the only constitutional way Congress can comment on judicial interpretation is by enacting statutes.

          3. S1 (x or y)  I2 (x)  ___  I4 (x or y?), acquiescence says x.

      3. Absurdity Doctrine: “A slip of the brain;” the idea that there is a threshold of absurdity above which it is assumed the statute did not intend to reach. (Avoid drawing conclusions that would require absurd foresight or knowledge, as well as those with unanticipated consequences). The absurdity doctrine says that Congress could not have considered the specific instance and its absurd results when they included the language being interpreted.

        1. Arguments in favor: perfect foresight is never possible and might actually be a waste of time, so it makes better sense for Congress to get the main applications down and leave it up to judges, the “faithful agents” who will fix the few absurd applications.

        2. Critiques: It won’t always be judges making the decisions, but will instead be people/agencies interpreting the statutes or making exemptions. Whether one agrees with the doctrine depends on one’s assessment of how competent the agency/agent is-might want them to have less discretion based on their lack of intelligence.

      4. Scrivener’s error: “a slip of the pen,” an obvious mistake in the transcription of the legislature’s policy into words. It differs from the absurdity doctrine in that it is a facial error rather than an interpretative one. Ambiguity is not a predicate for a scrivener’s error, and a judge’s conclusion based on the error will face a lot of scrutiny.

      5. Foundational Theories:

        1. Intentionalism: (most traditional, but has fallen out of favor) when a judge confronts a difficult issue of statutory interpretation-when the statute is unclear, or seems to dictate a troublesome result-the judge tries to determine what the legislature would have specifically intended if it had confronted the particular interpretative question before the court.

        2. Purposivism: purposivists view the above question as too illusory or difficult to reconstruct. They maintain that Congress adopts legislation for a reason and that courts should read specific statutory provisions to advance the purpose of general aims of the legislation, as derived from a variety of source. They pay close attention to the semantic meaning of the text, so long as it does not contradict the statute’s overall purpose.

          1. “Rational actor theory”-the master would want the faithful agent to follow his purpose, not his specific command.

        3. Textualism: holds that interpreters should strive to discern how reasonable people would understand the statutory language, arguing that going beyond the text to further some elusive notion of congressional intent or purpose is both illegitimate in principle and unworkable in practice.

        4. Note: Judges subscribe to any one of these theories and use any combination of the sources listed above and below to inform their interpretation. Each of these approaches is grounded in the principle of legislative supremacy, the idea that in the U.S. constitutional system, acts of Congress enjoy primacy as long as they remain within constitutional bounds, and that judges must act as Congress’s faithful agents.

          1. Liber’s Hypothesis: Purpose + Belief = Intent

      6. Canons of Construction: Interpretive principles or presumptions judges use to discern-or construct-statutory meaning.

        1. Semantic Canons- rules about language use (also called “linguistic” or “syntactic” rules) (generally disfavored by academics)

          1. Ejusdem generis (“of the same kind”): if you have a list of things, identify the class those things belong to, and read the ambiguous term to mean the same as the other things in the class (based on the idea that legislators tend to group together words that have a common characteristic.) Often invoked when the term at the end (called the residual term) has a broad meaning that would go beyond the sorts of things specifically enumerated without the canon-used to read the term more narrowly so that it encompasses only things that are similar to the items that are specifically mentioned.

            • An opposite reading would hold that lists are used for each word to have a different meaning, otherwise the list would be repetitive.

          1. Expressio unius (“the express mention of one thing excludes all others”): if something is mentioned explicitly, it is meant to be exhaustive. The very fact that items were enumerated means that everything else is excluded.

            • An opposite reading would say if a list is included, it is meant to be illustrative and not exclusive (more similar to ejusdem generis).

          2. Noscitur a sociis (“you know it by its friends”): a word’s meaning can be clarified by the words around it-necessitates looking at the surrounding language to understand the meaning of a particular word.

          3. Presumption of consistent usage: construe words within statutes on similar subjects to have the same meaning

        1. Substantive Canons: a judicial presumption in favor of or against a particular substantive outcome. These are judge-made principles, grounded in commitment to certain systemic values rather than any empirical beliefs about actual congressional intent

          1. Rule of lenity: construe ambiguous texts to mean the meaning most favorable to the defendant. This rule is based on the need for fair warning, closely related to our valuation of real notice, which must be offered even if the defendant does not take it, because we want Congress to be clear before they implement sanctions. Currently, the rule acts as a tiebreaker, as there is a trend toward using legislative history to create sufficient clarity such that the rule is not triggered.

          2. Rule of constitutional avoidance: If a statute is ambiguous, if one interpretation would raise an issue of constitutionality and other would not or is constitutional, pick the constitutional interpretation. (Shorthand: if possible, decide in a way that avoids finding that a constitutional question is present)

            1. Severability doctrine: When a statute is unconstitutional in some of its applications but not in others, it can be held as to its constitutional application and invalid as to the others.

            2. Vermuele wants to get rid of the canon, though it is helpful for litigators who want a narrower interpretation (they can refer to a constitutional question in the hope of a narrower construction).

          3. Presumption against retroactivity: “repeals by implication are not favored” (TVA v. Hill)- if Congress passes something in 1977 that is inconsistent with an earlier statute but does not acknowledge the inconsistency, if there is any way to allow both to continue, the court does.

          4. Presumption that appropriations cannot change substantive law: expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress (TVA v. Hill).

    1. Cases

      1. Foundational Theories (Purpovism): TVA v. Hill (1978):

        1. Issue: Did the Endangered Species Act of 1973 require a court to enjoin the operation of a virtually completed federal dam? Text of statute: “each federal agency shall…insure that any action authorized, funded, or carried out by such agency…is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species…”

        2. Majority Opinion (Burger): Takes an interpretation that is purposivist and textualist. This type of result was actually the plain intent of Congress and the language reflects that. Burger depends on the text, legislative history, purpose vs. intention, the canons of presumption against retroactivity and appropriations laws changing substantive interpretation. (They favored the Secretary’s argument that once a federal project was shown to jeopardize an endangered species, a court is compelled to issue a restraining order).

        3. Dissent (Powell): Powell argues that the shutting down of the dam in favor of some birds (the snail darter) to be ridiculous. He favored the ruling of the District Court, which determined that since the dam was 80% completed, and there had already been an “irreversible and irretrievable” commitment of resources by Congress over a decade, through subsequent legislation, it would be unreasonable, even absurd, to require them to stop.

          1. Powell relies heavily on Holy Trinity, which said that “frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act”  literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose.

        4. Takeaway: This case demonstrates that while judges agree that they must faithfully carry out Congress’s intentions, they vary on how to best do so.

      2. Scrivener’s Error: United States v. Locke (1985)

        1. Issue: The federal recording system required that claimants file a notice of their intention to hold the claim “prior to December 31st” of every year. The appellees, filed on December 31st and lost their claim, wanted “prior to December 31st” to be read as “on or before December 31st

        2. Majority (Marshall): Found that because deadlines are arbitrary by design, it is proper to adhere to the literal meaning (appellees lose-“tough luck”). Majority rejects the idea that this is a scrivener’s error because “the fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.”

        3. Dissent (Stevens): This language is at worst a mistake and at best unclear/ambiguous. An analysis of the context of the provision reveals that Congress clearly meant to say by the end of the year.

        4. Better example of the scrivener’s error: Cernauskas v. Fletcher, state legislature passed a statute about public streets that said, “all laws and part of laws are hereby repealed”- must mean all laws that contradict this particular provision.

      3. Ordinary vs. scientific (“term of art”) meaning: Nix v. Hedden (1893)

        1. Issue: Are tomatoes properly classified as fruits or vegetables under the Tariff Act? (Vegetables were taxed and fruits were not)

        2. Majority: While there is a particular botanical meaning for “fruit” and “vegetable,” there is no specialized meaning in trade and commerce, so the ordinary meaning rules.

        3. Conclusion: There is a presumption in American law that ordinary meaning applies unless Congress/the legislature indicates otherwise. It is appropriate to use the particular context and common usage to come to a conclusion about a particular word.

      4. Ordinary Meaning vs. Dictionary Meaning: Smith v. United States (1993)

        1. Issue: Does the exchange of a gun for narcotics constitute “use” of a firearm “during and in relation to…[a] drug trafficking crime” within the meaning of a statutory provision requiring that a defendant who “uses or carries a firearm” during and in relation to any crime of violence or drug trafficking crime be sentence to five years incarceration.

        2. Majority (O’Connor): Yes, exchanging a gun for drugs does constitute “use” under the statute, determining that it would be unreasonable to read the clause as excluding the use of a firearm in a gun-for-drugs trade. She considers the remaining provisions of the statute for more clues as to its meaning and rejects the rule of lenity argument, since the “mere possibility of articulating a narrower construction does not by itself” make the rule applicable. The majority depends in large part on the dictionary definition, an approach that is often criticized since dictionary definitions often miss or undervalue the policy impulses that inspired the legislation.

        3. Dissent (Scalia): The ordinary use of the word “use” would lead to the opposite conclusion. Further, the rule of lenity requires an interpretation in favor of the defendant.

      5. Textualist Critique of Legislative History: Blanchard v. Bergeron (1989)

        1. Issue: A statute provided that a court “in its discretion may allow a reasonable attorney fee” to a prevailing party in federal civil rights action. Was a court’s reduction of a plaintiff’s award proper?

        2. Majority (White): No, the contingent-fee contract does not impose an automatic ceiling on an award of attorney’s fees, and to hold otherwise would be inconsistent with the statute and its policy and purpose. The Court relies heavily on a Senate Report that cites various decisions to reach this conclusion.

        3. Concurrence (Scalia)-favoring textualism: The purpose of the references in the Senate Report was to influence judicial construction, not to inform Members of Congress about the bill. The Court should continue to adhere to the approach of seeking to develop an interpretation of the statute that is reasonable, consistent, and faithful to its apparent purpose, rather than to achieve obedient adherences to case cited in the committee reports.

        4. Primary textualist critique of legislative history is that only the text of the statute, not the subjective intentions of individual legislators discerned from the text, is the law.

      6. Legislative Process and Statutory Interpretation: Continental Can (1990)

        1. Issue: Continental Can wanted special treatment under a statute that applied when “substantially all of the contributions of the plan are made by employers primarily engaged in the long and short haul trucking industry…” for a pension plan. Does anything over 50% = substantially all?

        2. Majority (Easterbrook, Circuit Judge): No, the history prior to the statute’s enactment suggest that it was intended to mean 85%. The legislative history of a bill is valuable only to the extent it shows genesis and evolution, making “subsequent legislative history” an oxymoron. The text of the statute, and not the private intent of the legislators, is the law. The text is law and legislative intent is a clue to the meaning of the text, rather than the text being a clue to legislative intent.

      7. Semantic Canons (ejusdem generis): McBoyle v. United States (1931)

        1. Issue: Does the term “vehicle” include aircraft under the National Motor Vehicle Theft Act? (Statute provides “motor vehicle” shall include “an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails…”

        2. Majority (Holmes): invokes the idea of paradigm meaning (what picture is conveyed by the use of the term) to suggest that plane is not covered. Follows ejusdem generis to say that the provision is limited to land vehicles, since those are the types of vehicle explicitly named (the residual term presumed to be limited)

      8. Canon of Avoidance: Catholic Bishop (1979)

        1. Issue: Are lay teachers at a religious school within the jurisdiction of the National Labor Relations Act? If the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clause of the First Amendment?

        2. Majority (Burger): No, there is no clear Congressional intent mandating such a result, and the second question need not be decided. Burger’s understanding is that the canon can be used only to resolve a statutory ambiguity that would exist independently of the canon. Thus, it functions more like a clear statement rule, according to which general terms should not be applied in ways that create serious constitutional problems. Thus, if Congress wants a general statute to reach constitutionally problematic cases, it must provide a “clear expression” of “affirmative intent” to do so.

        3. Dissent (Brennan): Applying the requirement for clear Congressional intent is problematic and could lead to the Court “virtually remaking” congressional enactments. Use of ejusdem generis demonstrates that Act was intended to cover al employers, as well as the rejected proposal doctrine. Brennan emphasizes that the Court may only adopt an interpretation that avoids a constitutional problem if that interpretation is “reasonable” or “fairly possible.” If the text of the statute is not ambiguous, then the avoidance canon has no place.

  1. Regulation

    1. The Uneasy Constitutional Position of the Administrative Agency

      1. Non-delegation Doctrine:

        1. Source: Article 1, Section 1 of the Const.: “all legislative powers herein granted shall be vested in a Congress of the United States.” The Constitution thus solely delegates legislative powers to Congress, and those powers cannot be re-delegated to others.

        2. Positions Under the Doctrine: Does Congressional delegation always, sometimes, or never amount to an impermissible delegation of legislative power?

          1. Always: The vesting of all legislative powers in Congress is not only an initial allocation, but a final one. Congress cannot transfer its legislative powers to any other institution, including administrative agencies.

          2. Sometimes: When Congress enacts a statute granting authority to the executive (or perhaps to private parties), the statute amounts to or effects a delegation of legislative power (and is therefore impermissible) if the scope of the grant is too broad or if it vests too much discretion in the executive.

          3. Never (Minority (Vermuele’s) view): When Congress enacts a statute granting authority, there is no “delegation” of legislative power no matter how broad the grant or how much discretion it confers, because by delegating the power through the enactment of the relevant statute, Congress has exercised its power. So long as the grantee acts within the bounds of its statutory authority, however broad they may be, the grantee is necessarily and by definition exercising executive power, not legislative power.

      2. Non-delegation Evolution:

        1. Hampton (1928): The Court upheld a statute that allowed the President to revise tariff rates whenever he determined that such revision was necessary to “equalize the costs of production in the U.S. and the principal competing country.” The Court determined that this was not an invalid delegation of Congressional power based on the “intelligible principle” test: “if Congress lays down by a legislative act an intelligible principle to which the person or body authorized to take action is directed to conform, such action is not a forbidden delegation of legislative power.” At this time, the Court had never invalidated a statute based on unfair/improper delegation.

          1. Problem with the intelligible principle: all intelligible principles will leave unbounded discretion in some domain because the legislature cannot offer a principle sufficient to close the gap between the delegation and the rule as is required/necessitated by the statute, and filling up that gap is necessary-part of what it means to execute the law.

        2. Panama Refining Co. v. Ryan (1935): involved a challenge to the National Industrial Recovery Act’s (NIRA) Petroleum code. The code was challenged on the basis of a section that gave the President authorization to “prohibit the transportation in interstate commerce” of oil petroleum. The Court held this section unconstitutional because it said nothing about when the president was to exercise the authorized power. (No intelligible principle)

        3. A.L.A. Schecter Poultry Corp. v. United States (1935) (“sick chickens” case): The NIRA was passed during the Depression to help stabilize wages and prices to restore business confidence. The act provided for representatives of management and labor in each industry to meet and develop codes of fair competition. Petitioners were convicted of violence of the “Live Poultry Code” and contested the code on the basis that the delegation was impermissible because it allowed the President to set out codes industry by industry with the force of law.

          1. Holding: Because the NIRA grants virtually unlimited discretion to the President in approving or proscribing codes, and thus enacting laws for the government of trade and industry, the NIRA confers a code-making authority that is an unconstitutional delegation of legislative power. (No clear intelligible principle)

          2. The delegation here went too far because it allowed the committee to set its own standards and there was lack of accountability among those committee. Note: Since this case, there have been no Supreme Court cases invalidating a statute on the basis of overly broad delegation.

        4. The Benzene Case (1980) (Attempt to revive the non-delegation doctrine):

          1. Background: The Petroleum challenged a regulatory standard limiting occupational exposure to benzene. Under the Occupational Safety and Health Act, the Occupational Safety and Health Administration (OSHA) is responsible for developing such standards, which are then formally adopted by the Secretary of Labor. The Act delegated broad authority to the Secretary to promulgate different kinds of standards. The Secretary took the position that no safe exposure level can be determined and that he had to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. The Secretary set an exposure limit on airborne concentrations of benzene.

          2. The plurality found that there must be a significant risk of health impairment for the Secretary to deem higher levels of benzene impermissible. Because there was an intelligible justification/rationale, the delegation stood, but it was remanded to the Secretary for review to determine that it is at least more likely than not that long-term exposure to benzene presents a significant risk of material health impairment.

          3. Rehnquist, in his concurrence, attempted to revive non-delegation as a reason for invalidating the statute by laying out three functions of the non-delegation doctrine:

            • It ensures that the important choices of social policy are made by Congress, the branch most responsive to popular will

            • It guarantees, to the extent Congress finds it necessary to delegate authority, that the recipient of the authority will have an “intelligible principle” to guide the exercise of the delegated discretion

            • It ensures that the courts charged with reviewing the exercise of delegate legislative discretion will be able to test that exercise against ascertainable standards.

            • His concurrence was rejected. Thus, while non-delegation lives as a principle for interpreting statutes, in a practical sense it follows the avoidance canon.

        1. American Trucking v. EPA (D.C. Cir. 1999)

          1. Background:/issue The Clean Air Act requires the EPA to promulgate and periodically revise national ambient air quality standards for each air pollutant identified by the agency as meeting certain statutory criteria. American Trucking contested those levels.

          2. Holding (per curiam): The construction of the Clean Air Act on which EPA relied in promulgating the standards at issue here effects an unconstitutional delegation of legislative power because the EPA did not use an intelligible principle to set those levels (not because of an impermissible delegation). The court remanded it back to EPA to develop an actual principle showing that the standard was set at the level required to “protect the public health” with an “adequate margin of safety” so that they could provide meaningful judicial review.

        2. Whitman v. American Trucking (2001)

          1. Majority (Scalia): Congress, not the EPA, should have articulated the intelligible principle. The SC determined that the constitutional question is not whether the EPA’s interpretation violated the non-delegation doctrine, but whether the statute has delegated legislative power to the agency. They noted that an agency cannot cure “an unconstitutionally standardless delegation of power by declining to exercise some of that power.” However, Congress’ delegation was sufficiently clear/intelligible since “not lower or higher than necessary to protect public health” sets out a ceiling/floor.

          2. Scalia describes the balance between appropriate scope and non-delegation as a sliding scale: the Supreme Court hardly ever invalidates something on non-delegation grounds except in cases where there are extreme factors on either the intelligible principle or scope side, meaning that the delegation must be extremely broad or must have little or no intelligible principle. In those cases, the Court preserves the right to invalidate, however this case is not one of those. (Basically, Vermuele says that this is just the Court avoiding having to invalidate the statute since they fail to provide any real guidance).

      1. Tools of Congressional Control (ways Congress constrains agencies).

        1. Legislative Veto: A statutory provision that says a particular agency action will take effect only if Congress does not nullify its resolution within a specified period of time. The goal of the legislative veto is to allow Congress an opportunity to oversee, or veto, agency decisions, especially if agencies are acting under statutes that give them broad discretion amounting, in practice, to a form of lawmaking. Three elements are essential to such a veto:

          1. A statutory delegation of power to the Executive;

          2. An exercise of that power by the Executive;

          3. A reserved power in the Congress to nullify that exercise of authority

          4. Case: Immigration & Nationalization Service v. Chadha (1983)

            • Facts: Chadha was an immigrant who remained in the U.S. after his visa expired. He was ordered deported, but the AG suspended his deportation for reasons of hardship. However, a provision in the Immigration and Nationality Act required that such deportations not be suspended without Congressional assent. The House passed a resolution (legislative veto) overturning his decision.

            • Issue: Did the House’s action violate the Constitution?

            • Majority (Burger): Yes, the Court overturned the action as unconstitutional on the basis that it violated the bicameral structure of Congress as well as the Presentment Clause. (Court declares legislative veto as a whole unconstitutional)

            • Dissent (Powell): By invalidating this statute and the legislative veto, the Court affects 200 other statutes when it should have used the avoidance doctrine.

        1. Alternatives to Legislative Veto:

          1. In 1996, Congress passed the Congressional Review Act, requiring agencies to submit almost all regulations to Congress before they become effective, while Congress has 60 legislative days to pass a joint resolution of disapproval, which would keep the regulation from going into effect. The impact of CRA has been minimal.

          2. Enactment of regulations as statutes: a bolder approach would require Congress to actually enact agency regulations as statutes (so an agency’s proposed rule could only go into effect after Congress enacted an authorizing statute). Such a proposal has been offered a number of time, but never been passed.

          3. Joint resolutions of approval: instead of permitting passage of a joint resolution of disapproval before a major regulation becomes effective, a statute such as the Regulations from the Executive in Need of Scrutiny (REINS) Act would require approval before the regulation becomes effective. This alternative has also not yet been enacted.

        2. Appropriations: Agencies can do nothing unless Congress has provided funds to do it. Thus, an unhappy Congress may reduce, or threaten to reduce, an agency’s overall budget to influence an agency. Appropriations are often used as temporary amendments to the underlying legislation.

        3. Oversight: Through its committees, Congress pays close attention to agency activities, with each committee or subcommittee with relevant subject matter jurisdiction maintaining fairly continuous, informal communication with the agency. There is always the possibility, or threat, that the committee, if unhappy will be moved to pursue legislation that will reverse or redirect the agency’s course, and the agency knows this. Thus all agency-Congress interactions occur against the backdrop of the possibility that if the agency does not conform its actions to the desires of legislators, it will find itself subject to legislation affecting the substance of its program, its structure, or its budget. (This includes oversight hearings, in which an agency official is summoned to the Hill to appear before the (sub)committee to explain and justify his or her activities).

        4. Casework and Constituent Service: members of Congress or their staff are in frequent contact with agencies regarding specific actions that affect particular constituents. Casework refers to the response or services that Members of Congress provide to constituents who request assistance. Members of Congress determine the parameters of such activities.

        5. Senate Advice and Consent: The Senate’s authority to withhold approval of the president’s nominee gives it some influence over who ends up running an agency. In general, the Senate has been highly deferential in considering appointments of the heads of departments, but less so with regard to lower-level officials or members of independent agencies.

      1. The President and Agencies: Appointment, Removal, and Cost-Benefit Analysis

        1. The “headless fourth branch”-agencies that have no boss so they cannot be removed by Congress under Bowsher and cannot be removed by the President under Humphrey’s. These include the SEC, FCC, NRLB, etc. This branch is necessary because in certain domains we have desires about immunizing the agency from accountability not to the nation but to the special interests within it, as well as preventing political corruption within specialized bodies of expertise. Also, it’s unclear how much directive authority the President has.

        2. Appointments (see back of p.3 February 16): Under the Appointments Clause, Article 2, Section 2, Clause 2, the president “shall nominate, and by and with the Advice and Consent of the senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” Congress has more discretion over “inferior Officers…”

          1. Principal Officers: placed by the President with the approval of 2/3 of the Senate.

          2. Inferior Officers: The President, without Senate consent, by the courts of law or by heads of departments can appoint inferior officers. (Congress can place the appointment of “inferior officers” in the president alone, the heads of departments, or the courts of law, leaving the Senate out of the process.)

          3. Buckley v. Valeo (1976):

            • Background: The Federal Election Campaign Act of 1971 created the Federal Election Commission (FEC) to implement the act. The agency was authorized to write rules, investigate violations of the act or its rules, hold hearings to determine whether violations had occurred, give advisory opinions, and commence civil judicial enforcement actions. The commission had six voting members. The president appointed two members with confirmation by a majority of both the Senate and the House. The speaker of the House and the president pro tempore of the Senate each appointed two commissioners, also subject to confirmation by both Houses. The secretary of the Senate and the clerk of the House were ex officio members without a vote.

            • Issue: The appellants urged that since Congress gave the Commission wide-ranging rulemaking and enforcement powers with respect to substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Can the Appointments Clause be read to include Congress or its officers as among those in whom the appointment power may be vested?

            • Holding (per curiam): No. The arrangements for appointing FEC commissioners violated the appointments clause. Defined “Officer of the U.S.” as any appointee exercising significant authority pursuant to the laws of the United States (thus includes both principle and inferior). There is no mechanism by which Congress or any of its members can appoint officers in the United States.

          1. Morrison v. Olson(1988) Appointment:

            • Background: The (now-expired) Ethics in Government Act created the post of “independent counsel,” a prosecutor to investigate and, where appropriate, prosecute the possible criminal activity by senior executive branch officials. Matters were referred to a three federal judge panel appointed by the Chief Justice for the purpose of naming independent counsels. The independent counsel had “full power and independent authority” to exercise investigative and prosecutorial functions of powers in/of the DOJ.

            • Holding: The Supreme Court held that the independent counsel was an inferior officer, and so appointment by the court was permissible. Even purely executive officers can be made independent, so long as such designation does not unduly interfere with the President’s constitutionally specified powers.

            • Court lays out the following test for distinguishing inferior and principal officers:

              1. Is the appellant subject to removal by a higher Executive Branch official? (If yes, they are “inferior” since Congress can only remove principal officers by impeachment)

              2. Is the appellant empowered by the Act to perform only certain, limited duties? (Does it grant authority to formulate policy for the Government or the Executive Branch, or give administrative duties outside those necessary to operate the office?)

              3. Is the office limited in jurisdiction?

              4. Is the office limited in tenure?

            • Dissent (Scalia): Pointed out that many indisputably principal officers, such as heads of departments, are subject to removal by a higher official (namely the President), so the test fails in that respect. Second, he thought the majority mischaracterized the scope and authority of the independent counsel. He also thought that their inquiry was misplaced and should have focused on the text of the Const. and the division of power it imposes. He would have concluded that the Independent Counsel was not an inferior officer (and that therefore her appointment was invalid) because she is not subordinate to any officer in the Executive Branch.

          1. Edmond v. United States (1997):

            • Background: Case considered the Coast Guard Court of Criminal Appeals, which included two civilian members appointed by the Secretary of Transportation without Senate advice and consent (appointed as inferior officers). Edmond argued that this method was unconstitutional.

            • Analysis: Whether one is an “inferior” officer depends on whether he has a superior, since “inferior” connotes a relationship with some higher-ranking officer or officers below the President. Inferior officers are therefore those officers who work is directed and supervised at some level by other who were appointed by Presidential nomination with the advice and consent of the Senate (“principal officers”).

            • Holding: Using the Morrison test as well as the new test of subordinance, the Court determined that the judges of the Court were inferior officers, and that therefore their appointments were proper. (New test: if there is subordinance, then look to the Morrison factors-subordinance is necessary, but not sufficient.)

          1. Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) (2010)

            • Background: The Sarbanes-Oaxley Act of 2002, created in response to the various corporate scandals of the prior year, created the Public Accounting Oversight Board, composed of five members appointed by the SEC and removable by the SEC for cause. Every accounting firm that audits public companies under the securities laws must register with the Board, pay an annual fee, and comply with its rules and oversight. Free Enterprise was an accounting firm and non-profit organization. The Board released a report critical of the firm and began an investigation into its practices. Petitioner sued, claiming it was unconstitutional and seeking an injunction against its exercising its power.

            • Holding: In a 5-4 decision, the Court struck down the provisions requiring cause for removal of PCAOB members, but upheld the provisions regarding appointment of the Board members. (Board members determined to be “inferior officers”).

          1. Cross-branch appointment (Congress allowing one entity to appoint another in a separate branch of government) is permissible so long as such appointments are not incongruous with the purpose of the appointee or appointer (101). (For example, a court can appoint a prosecutor).

          2. Recess appointments: Under Article 2, Section 2, Clause 3, the recess appointments clause authorizes the president to make temporary appointments (lasting until the end of the following congressional session) without Senate approval. It has become a mechanism for the president to get in place, if only temporarily, a nominee who for whatever reason the Senate has failed to confirm.

        1. Removal

          1. The Constitution is silent as to the removal of federal officers. In the “decision of 1789,” Congress adopted statutory language that did not expressly grant the president power to remove but did specify what was to happen after he removed a secretary, implying a presidential power to remove. The dominant understanding is that the first Congress concluded that the Constitution places the power to remove executive officers in the president. (The Constitution does mention the possibility of impeachment in which the House proposes a removal for cause and the Senate has to agree with a 2/3 vote.)

          2. Myers v. United States (1926):

            • Background: Myers was appointed postmaster for a four-year term under a statute providing that postmasters “shall be appointed and may be removed by the President with the advice and consent of the Senate.” President Wilson removed him from office, prior to the expiration of his term, without the consent of the Senate and Myers sued for back pay. The government argued that his removal was lawful because it is unconstitutional to limit the president’s power to remove an executive branch official by requiring the Senate’s agreement.

            • Analysis: The President must have the power to quickly remove subordinates who he does not have full faith in. Congress can pass specific legislation to limit that power, but absent that, it is unchecked. Even if the statute says it requires Senate approval, the President has broad powers of removal.

            • Holding: The power to remove subordinates is inherently part of the executive power, which Article 2 Section 1 vests in the President. The removal was lawful.

          1. Bowsher v. Synar (1986)

            • Background: Congress passed the Balanced Budget Act, giving the comptroller general power to make budgetary decisions as a member of the executive branch. The head of the Government Accountability Office could be removed only for cause by a joint resolution by Congress. The Supreme Court invalidated this statute on the basis that it was improper for Congress to grant executive power, determining that Congress was encroaching on the domain of the executive by placing officers in the executive.

            • Holding: “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment”

            • Result: When combined with Buckley, the Court seems to be saying that Congress is very limited in the types of controls it can put on personnel. It cannot affirmatively appoint or remove.

          1. Humphrey’s Executor v. United States (1935)

            • Background: The FTC was created to enforce certain provisions of the antitrust laws and to define and eliminate “unfair methods of competition.” Proponents wanted a nonpartisan organization, free from the interference of either Congress or the President. In its early years, the Commission brought few major cases. Roosevelt wanted to install commissioners who would be more vigorous and ambitious in enforcing the Act. Humphrey was nominated by Hoover and confirmed for a seven-year term to end in September 1938. In 1933, Roosevelt sent a letter asking for his resignation and after the Commissioner declined to resign, he removed him from the position.

            • Issues: The FTC Act stated “any commissioner may be removed by the President for inefficiency, neglect of duty, malfeasance in office.” Does this provision restrict the power of the President to remove a Commissioner except for one of the causes named? If so, is such a restriction valid?

            • Holding: The Court repudiates Myers outside of its narrow application to postmasters and the idea that an officer, as a unit of the executive department, is inherently subject to the exclusive and illimitable power of removal by the Chief Executive, including all purely executive officers. It does not include officers who occupy no place in the executive department and who exercise no part of the executive power vested by the Const. in the Pres.

            • Resulting Rule: For purely executive officers, the President has to be able to remove at will. For officers exercising quasi-legislative or quasi-judicial powers, Congress can create for-cause removal protection (such as the provision at issue in this case).

            • To take away the President’s power to unilaterally remove officers, Congress must create “independent agencies” (e.g. the FTC, NLRB, FCC, SEC), which must have a balance between parties. Humphrey’s thus licenses the Congressional creation of independent agencies. Thus, while Congress cannot appoint or remove, it can constrain the President’s ability to do so.

          1. Morrison v. Olson (1988): Removal

            • Background: The Independent Counsel could be removed from office “only by the personal action of the AG and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independence counsel duties.” The independent counsel had the power to investigate and prosecute.

            • Issue: Is the provision, mandating that the IC be removable only for cause by the AG (rather than removable at the President’s will) valid?

            • Majority (Rehnquist): The Ethics in Government Act puts the removal power squarely in the hands of the Executive Branch, without the requirement of congressional approval, though it is subject to judicial review. The Court moves from a question of quasi-judicial/legislative to “whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duties. The “good cause” removal provision here does not burden the President’s power to control or supervise the independent counsel. Further, the Act does not undermine or disrupt the balance of power between the coordinate powers. While this is nominally the test, Vermuele expects that it will be overruled.

            • Dissent (Scalia): The Court errs because it finds that the conduct of the independent counsel was purely executive and that the statute necessarily deprives the President exclusive control over the exercise of purely executive power, yet fails to determine that the statute vesting that power in a person not the President is void. How much the statute reduces Presidential control is irrelevant, the fact that it does so renders it invalid.

          1. Back to PCAOB

            1. Issue: May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the law of the U.S. (is an “executive officer”)? (Double for-cause protection) (see diagram in Feb. 17th notes)

            2. Holding (Roberts): Such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President. The Court reached this conclusion because members of the Board were insulated from the Commission’s control-the Commission could not remove Board members at will, but only “for good cause shown in accordance with” certain procedures.

            3. Effect: PCAOB is narrow on its face but the language is targeted at limiting/clarifying the permissible constraints on the President’s power under Humphrey’s Executor.

Summary Of Removal

May Congress Remove?

a. Myers (narrow): no, there is no requirement of ex post Senate consent to removal (only impeachment is available)

b. Bowsher: Removal by statute is impermissible

Overall, no except by impeachment, in part because of the idea of avoiding “aggrandizement”-the temptation to centralize/draw in all the government’s power.
May Congress make executive officers removable by the President only for cause? (Constrain removal by the President?)

a. Myers (broad reading): no, Congress cannot do so, as it will be a violation of the Constitutional clause vesting the executive power in the President

b. Humphrey’s Executor: yes, for quasi-legislative or quasi-judicial officers (overturns Myers in part by saying that to the extent that the officers are not exercising purely executive powers, Congress can determine that they are removable only for cause.)

c. Morrison: yes, unless it interferes with the President’s constitutional duties to execute the laws (does not matter whether the independent agency is quasi-judicial or quasi-legislative)

d. PCAOB (narrow): Congress cannot grant two layers of for cause protection: cannot create an independent board/office in which the principal officer is protected against at-will removal and the subordinate/inferior officer is also only removable for cause.

e. PCAOB (broad reading): A broad reading would essentially re-instate Myers, though Morrison remains the nominal test. Morrison is quickly falling out of favor.
On the exam, if there is a removal question, mention both Myers and Humphrey’s, then say that Morrison is the prevailing rule, and then reference the change with PCAOB (So go through each test.)
Note: In practice, the presence or absence of the power to remove does not equate with substantive authority.

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