1. Chapter 2 Part II

2. 2 Tenure of Office Act – 1867 If Congress is silent on removal, the officer serves at the discretion of the President This Act limited the right of presidents to remove cabinet members without the consent of the Senate President Andrew Johnson removed the Secretary of War Was impeached, but not removed by one vote There are now no limitations on removal of Cabinet Officers

3. 3 Myers v. US, 272 US 52 (1926) Why all this concern about postmasters? President Wilson discharged an Oregon postmaster without cause Postmaster sued for back pay under a law passed after the Tenure in Office Act that required the senate to approve appointment and removal of postmasters Chief Justice and Ex-President Taft wrote the opinion, which found the Tenure in Office Act and related acts an unconstitutional limit on presidential power.

4. 4 Humphrey’s Executor v. US, 295 US 602 (1935) Less than 10 years later, Meyers is again at issue - what is the political change over that period? Why was the FTC controversial at that time? What was the restriction on removing FTC commissioners? How did the lawsuit arise? President fired Humphrey from the FTC Humphrey died and his executor sued for the pay for the rest of his term

5. 5 Myers Redux Why did the court change its view on the removal power? How is a postmaster different from an FTC commissioner? (This has not been important in later cases) What type of agency does this create? Where does the independence come from? Are the agencies independent if the President is in office long enough to appoint all the members?

6. 6 How could the president fire an FTC commissioner? In theory the president could state a cause and fire a commissioner, but it has not happened Does this mean that they always stay when the president in unhappy with them? It has not been an issue because they get hounded out of office if there is cause This is an area where the presidents have not challenged the court

7. 7 The Politics of the Sentencing Commission Started out as a way to moderate unreasonable sentences Sentences were made longer and the judges lost discretion to shorten them. White collar criminals did more jail time First time drug offenders did a lot more time. Limited and eliminated various ways to shorten a sentence (no parole) End result was the opposite of the intention

8. 8 Mistretta v. US – 1989 This case attacked the US Sentencing Commission as an impermissible limitation on the Judicial Branch The Commission is an independent commission in the Judicial Branch The members are appointed by the President There are no terms of office The Court found that the president could remove them, even though this is not an executive branch agency

9. 9 The Mistretta Ruling Read as holding that the president can remove anyone he appoints, as long as there are no terms of office The Court upheld this commission because of it peculiar nature, finding that it did not unduly affect the judicial branch Is there any right to judicial discretion? Probably limited by the power of congress to set sentences - nothing says judges are allowed sentencing discretion The powers of the sentencing commission have now been limited on due process grounds

10. 10 Removal Wrap Up What if the statute says an officer serves until removed for good cause, but does not specify a term of office? Think about what would happen if they could not be removed except for cause. Can the head of a department remove inferior officers he has appointed? Unless Congress creates a term of office, if you appoint someone, you can fire them. Terms of office for agency heads create independent agencies These agencies are still executive branch agencies

11. 11 Line Item Veto - Clinton v. City of New York, 524 U.S. 417 (1998) What is a line item veto? Why was a line item veto unnecessary in the founders vision of the operation of federal budget? How have things changed? Why do presidents want them? How might a line item veto cause a president problems? What separation of powers issues does it raise? How did the court rule in this case?

12. 12 Review: Executive Orders Orders from the President to agency heads Sets policy on discretionary decisions Not defined by the Constitution or legislation

13. 13 Types of Executive Orders Domestic Policy Orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders http://www.whitehouse.gov/briefing- room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm

14. 14 Limits on Executive Orders Cannot change budgetary allocations Cannot change statutory duties The Gag Rule controversy (Rust v. Sullivan) Cannot abrogate due process No directing the result of an adjudication Cannot legislate President cannot make binding regulations by Executive Order Cannot use them to change policy for Independent Agencies

15. 15 OMB/Executive Order Review Executive branch review done through executive orders The purpose is to “reform and make more efficient the regulatory process"

16. 16 “Principles of Regulation” These principles require agencies to consider many factors when devising a regulation, including the costs and benefits of the regulation; alternatives to the regulation; and the impact of the regulation on state, local, and tribal governments and officials. Each agency designates a “Regulatory Policy Officer” (“RPO”). The RPO reports to the head of the agency and must be involved “at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles [for regulation].”

17. 17 Regulatory Agenda The regulatory agenda is “an inventory of all regulations under development or review” by that agency. The “regulatory plan” identifies “the most important significant regulatory actions” that the agency plans to take in the next year or so. The regulatory agenda (with its regulatory plan) goes to the Office of Information and Regulatory Affairs (OIRA) OIRA circulates it to other agencies and conducts its own review for conflicts OIRA also has meetings with the agency and Vice President to coordinate agency action

18. 18 OIRA Review of Significant Regulatory Actions Significant regulatory actions are proposed regulations: (1) that have a major effect on the economy; the environment; public health; state, local, or tribal governments; communities; or existing federal programs; (2) that conflict with other agency actions; or (3) that raise novel legal issues or policy issues. OIRA considers whether the planned regulation: complies with the applicable law, the President’s priorities, and the principles for regulation. conflicts with the actions or planned actions of any other agency. OIRA sends the written results of this review back to the agency and involves the president if it cannot resolve problems

19. 19 Independent Agencies OIRA reporting requirements, which can be waived OIRA can make recommendations If the agency rejects the recommendations, the president or vice-president are not involved What is the problem with OIRA review of independent agencies?

20. 20 Information (Data) Quality Act The Act requires OMB to issue guidelines to agencies ‘‘for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies.’’ Agencies, including independent agencies, must implement these guidelines Includes provision for individuals to challenge and correct information about themselves Since this is statutory, not an EO, it is Congress modifying the status of independent agencies and poses no constitutional problem.

21. 21 Judicial Review of Executive Review E.O. 12866 states that it “does not create any right or benefit... enforceable at law or equity” against the government or its officials. This prevents direct judicial review of alleged violations of E.O. 12866.