Inherent Presidential Power
In Youngstown Sheet & Tube, where does Presidential power come from, if it is not explicit in the Constitution? What can it not be interpreted from?
Needs to be implicit from the aggregate of his constitutional powers. Cannot simply come from his powers as "Commander in Chief"
What is the nondelegation doctrine?
The principle that Congress may not delegate its legislative power to administrative agencies
What is a legislative veto and how does it work?
A provision authorizing, as a check on Congressionally delegated authority, provisions that allow some Congressional body (one house, both houses, or a Congressional committee) to overturn an agency action as unconstitutional.
What is the general removal power as understood from case law?
The president may remove executive officials unless removal is limited by statute.
Under Morrison, why was the "good cause" removal requirement upheld?
It's not a high bar and does not interfere or impose too much on removal power.
Why is presidential power considered inherent? Essentially, how is it different from Congress's power.
The president has the ability to act without express constitutional or statutory authorization based on the fact that the executive powers are not "herein granted" like Congress's powers.
Why did the nondelegation doctrine go through a "demise"?
In more than 90 years, not a single federal law has been declared an impermissible delegation of power, no matter how broad.
Why did Chadha rule the legislative veto unconstitutional?
When the legislative veto allowed overturn by one house, that was legislative in nature by altering rights and duties. There is a Constitutional procedure for creating laws and this goes against that making it unconstitutional.
How does the removal power differ from the appointment power on the most basic, Constitutional level?
There is no removal power in the Constitution, so it has to be inherent in practice and come from case law
In Bowsher, why could Congress not legislatively retain control of the removal of a Comptroller General?
Congress is not charged with an active role in "executing" via supervision the laws it enacts because that is an executive branch function so Congress may not reserve removal power of a person who is assisting with executing laws.
What are the four models of Inherent Presidential Power?
1: No inherent power, POTUS may only act with constitutional or statutory authority
2: POTUS may act without constitutional or statutory authority so long as they do not usurp powers of another branch
3: POTUS may act as long as they are not violating a constitutional or statutory provision
4: POTUS may act unless they violate an explicit constitutional provision
In the sick chickens case, why was the Presidential delegation of power unconstitutional?
There was a delegation of unfettered power and discretion to make whatever decisions he wanted and power can only be delegated with some kind of guidance which were lacking in the act and all provided limitations did not touch the scope or substance.
How does Congress check the appointment power of the President?
Congress may advise and must give consent through confirmation for agency directors
In what types of scenarios is Congress allowed to restrict removal power of the President? What types of positions are these usually?
Where independence from the President is desirable. Typically for commissioners.
In Myers, why did the court feel the President allowed to remove a postmaster when he refused to resign.
They felt that removal was incidental to appointment and if Congress's involvement had been intended in removal, then it would have been in their enumerated powers. By contrast, the President's power was granted more broadly, so we can infer more.
What is executive privilege?
An inherent power that gives the president the ability to keep certain communications confidential specifically referring to secrecy in conversations and memos with chief presidential advisors.
Why was the delegation of power unconstitutional in the hot oil case?
Congress entirely granted power to the President that could be exercised at his discretion without standards or rules. If Congress is going to delegate power it must sufficiently direct the use of the authority.
How can Congress overturn an agency decision?
By statute, following the prescribed procedures of bicameralism and presentment to the president and if vetoes, by 2/3 approval of Congress.
How does Congress statutorily limit removal?
The statute cannot prohibit removal but can limit it to instances of "good cause"
Why did Free Enterprise Fund rule that it is not okay to restrict presidential removal by inserting an "inferior officer" in between the President and the position to be removed?
Layering still strips the President of his ability to ensure that the laws be faithfully executed. Congress cannot restrict the President's constitutionally granted power by stripping removal powers that he must possess based on his role.
There was no claim of specific secrecy needs and the information could be protected. Due to separation of powers, the judiciary gets to define the scope of judicial review and it can be reviewed as a matter of law.
Why was the Gundy delegation of power to the attorney general upheld as Constitutional?
There was an "intelligible principle" to which the attorney general had to conform, so there were parameters meaning the delegation was neither unchecked nor unguided. Though the guidance was loose, there is a high bar for finding a problem since sick chickens and hot oil so any guidance will suffice.
Why did the act delegating power to remove special counsel to the attorney general, rather than the President, not violate the nondelegation doctrine or violate the President's Article II powers in Morrison v Olson?
The act provided several guidelines for removal and identified specific powers and length of office. This was not an issue under Article II powers because this officer was (1) inferior, (2) had limited, restricted duties, (3) had limited jurisdiction, and (4) had a limited tenure in office so delegation of the authority by Congress did not violate the Appointments Clause
Congress attempted to impeach Andrew Johnson for illegally removing the Secretary of War which Congress felt was obstruction of the law.
Under Humphrey's Executor and Weiner, why do we not want a commissioner to be removable without good cause and how can Congress "require" good cause?
We are looking for commissioners where we want independence from the President because they are doing jobs based on expertise and they cannot freely give expertise with removal hanging over them. Congress may statutorily limit to good cause or, under Weiner, we can look at the terms of the legislation itself and determine if it should be free from external influence or control.