The Building Blocks



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Nixon v. United States (1974) Burger


  • President’s claims of why he should not have to turn over tapes

  1. Court has no role to play in adjudicating these claims

  2. If court does intervene should recognize executive privilege as a constitutional matter

  • In terms of text, there is Speech and Debate Clause Art. I. § 6 shields members of Congress from civil or criminal suits relating to legislative action and grand jury investigations relating to those actions, no counterpart for members of executive branch

  • H: Court has power to decide this, references to Marbury v. Madison

  • H: There is a constitutionally based sphere of executive privilege- not absolute

  • Court will decide scope of privilege

  • It will take specific reasons to overcome privilege and the strength of the privilege may vary with nature of material

  • H: Claim of privilege strongest where material involves diplomatic, military, national security; weakest when generalized claim of confidential communication

  • Here, general claim of confidentiality weaker privilege

  • H: need sufficiently strong evidence to overcome

  • Here, material is necessary for fair disclosure of justice privilege overcome

  • Fair administration argument would be very compelling from ’s side (due process concerns)

  • Here, it is important that is not normal criminal prosecution

  • Hard to see need to overcome privilege as strong enough in regular case

  • (We know from Clinton that this privilege does not extend to Secret Service)


Nixon v. Fitzgerald (1982) Powell 5:4

  • Civil suit for violations of 1st Am. and statutory rights

  • H: President has absolute immunity from civil liability for his official acts

  • White Dissent: No reason to depart from usual rule that absolute immunity attaches to particular functions-not to particular offices

  • No provision in Constitution akin to Speech and Debate Clause

  • Court had held not immune to suits for injunctive relief or other judicial process

  • This places the President above the law


Harlow v. Fitzgerald (1982): Presidential aides do not get similar absolute immunity

  • But they do get fairly broad qualified immunity


Clinton v. Jones (1997) Stevens

  • No immunity, not even qualified, for acts that the President takes that are completely unrelated to carrying out of job

  • Rationale for official acts immunity, serves public interest so officials can do jobs without fear that decision may give rise to personal liability

  • Rationale did not apply to acts he took before he was President

  • President was not asking for total immunity, only delay

  • District court: Permit discovery and delay trial

  • S.Ct: No constitutional immunity that requires delay, trial judge can use discretion and decide that delay of trial is needed based on particular factors

  • But a flat rule for delay does not consider party’s interest in fair adjudication and risks of delay



  1. Impeachment

  • What constitutes an impeachable offense?

  • “High crimes and misdemeanors”- what are these?

  • Could Supreme Court come to different conclusion than Congress about what is an impeachable offense?

  • Most academics believe Clause should be enforced by politics alone, not Court

  • This makes responsibility of Congress even greater with no judicial review




  1. President’s Veto Power

  • Art. I § 7 gives President power to veto any bill passed by Congress

  • Veto can be overridden by 2/3 majority vote in each house


Clinton v. City of New York (1998) Stevens 6:3

  • Line Item Veto: Ability to veto single item of spending, rather than entire bill

  • Statute gives vague outline of how President can use

  • Is a confession of congressional weakness, can’t find internal measure to discipline itself

  • Mechanical, formal reasoning

  • Unconstitutional for same reason as the 1 house veto in Chadha, does not conform to finely wrought process of Art. I

  • Because net effect is to let President write new bill

  • Bill that is enacted as a law is not the bill passed by Congress

  • If we use Jackson’s approach in Youngstown would seem to be constitutional: President acting with authorization of Congress, executive and legislative powers in concert

  • Kennedy Concurrence: Separation of powers concern

  • Failure of political will, Congress’ inability to find an internal measure, does not justify unconstitutional remedies

  • Act enhances President’s power beyond what Framers would have endorsed

  • Dissent: Breyer (cites Jackson), O’Connor, Scalia: Not President unilaterally acting

  • Congress authorized this

  • Look at past practices: Congress has done similar things giving President discretion in tariff bill, there were constitutional

  • Why don’t we understand the text Congress voted on to be a text that preserves discretion for President?

  • Scalia: No difference in this and what Congress has done before, title out act succeeded in faking out the Court

  • Congress could have achieved this by multiple, separate bills, each with a discretion power to President

  • There’s something different about handing over Presiden discretion and than having to act affirmatively to override, rather than affirmatively giving that discretion each time

  • Inertia concern, wholesale problem

  • Major constitutional problem with statute:

  • Delegation area: Whether or not President and Congress are acting together, should Congress be allowed to give up this authority, responsibility designated for it by the Constitution

  • Art. I § 7: All bills on taxation and budget shall originate in House of Representatives

  • Very fundamental idea of no taxation without representation

  • Afraid of reviving delegation doctrine

  • Scalia says there is no delegation problem, constitutional




  1. Legislative Authority

  1. Nondelegation Doctrine

  • How much power can Congress give away

  • How much instruction and control does the Constitution require Congress to maintain for agencies to be legitimate

  • Nondelegation Doctrine: Pretty specific control required

  1. To ensure fundamental policy choices would be made by legislature and not by officials within executive branch

  2. Promotes predicitability for those benefited or burdened by regulation

  3. Works against arbitrariness on part of administrators because it cabined their discretion in the enforcement process


Panama Refining Co. v. Ryan (1935)

  • Court invalidated provision of the National Industrial Recovery Act authorizing President to prohibit some things

  • Because statute did not supply standards that would tell President when to exercise power

  • Not specific enough, delegating under broad standards


Schechter Poultry Corp v. United States (1935)

  • Court invalidated poultry codes because it was impermissible delegation of legislative authority

  • Constitution invests the legislative power in Congress

  • Power AND obligation

- Now doctrine is dead



  • Statutes authorizing regulation of “unreasonable risks” or administrative action “in the public interest” are permissible

  • Scalia tried to revive in Industrial Union v. American Petroleum Institute (1980)

  • Argued that Congress is punting on the hard choices, avoiding constitutional duties

  • We didn’t elect OSHA- an accountability problem

  • We get legislation without accountability when we allow Congress to delegate

  • Schoenbrod: This is a way for Congress to be politically irresponsible

  • Ely: Doctrine insisted on policy direction, this is what is lacking today

  • In response to comment that detailed legislative instruction would be unworkable:

  1. Congress can call on experts

  2. Nondelegation doctrine did not insist on more detail than was feasible or that matters be settled with more permanence than subject matter allows

  • The modern trend may be seen as U.S. struggling with the presidential system

  • Maybe groping towards an alternate structure, more parliamentary like, coalition between executive and legislative branches




  1. Legislative Veto


INS v. Chadha (1983) Burger

  • Congress has always had power to allow an alien who would otherwise be deportable to stay, by means of a private bill

  • In effort to lift some of burden, Congress delegated to Attorney General the authority to suspend deportations BUT reserved a legislative veto over each decision suspending deportation

  • Veto could be exercised by a resolution passed by either house

  • Court struck down veto as a violation of 2 constitutional requirements:

  1. Presentment Clause (Art. I § 7, cl. 2)

  2. Bicameral requirement (Art. I §1 and § 7)- Both houses must pass a bill before it becomes law

  • Fact that legislative veto mechanism may be more efficient is irrelevant

  • Congress can only reverse Attorney General’s decision by passing law, through full Art. I process

  • Decision is extremely broad and applies to all vetoes

  • Majority: Formal approach, “finely wrought process for legislation”

  • Court says very little about why the action of the house is legislating

  1. Whenever a branch acts it is presumptively acting to do what that branch is set up to do- Congress acting, must be legislating

  2. This action alters somebody’s legal rights

  • Similar style of reasoning to Black in Youngstown

  • Court goes out of its way to say policy considerations are not relevant, form is

  • Is administrative state unconstitutional under decision?

  • Court clearly says NO- FN 16 (There is something different when executive, agency does rule making, not legislative don’t need full Art. I process

  • White Dissent: Functional approach

  • Executive agencies do engage in lawmaking function and doesn’t need full process

  • We should be concerned if a branch is trying to take more power, but that is not what’s happening, Congress is delegating and holding on to some control

  • We are better off if Congress maintains some control

  • We should understand as checks and balances, not strict separation of powers

  • The characterization of Court is formal and circular, no legal rights are actually altered until House makes final decision, so rights are not altered until concurrence of opinion among House, Senate, and President (AG) this preserves separation of powers




  • After Chadha: More specific statutes, maybe won’t give power at all less flexibility for Congress

  • Justification: Because veto is on such a specific issue, Congress highly susceptible to lobbying generates a process that is not consistent with constitutional vision




  1. Independent Agencies: Appointment and Removal of Executive Personnel

  • How independent can Congress make agencies from President?

  • Control over appointment and removal

  • Congress creates agencies to try and allow experimentation and for technical knowledge

  • Congress not structured for flexibility

  1. Unitary Executive View: All under control of President, this is how to maintain accountability

  2. Congress can make agencies independent

- But where do they fit in the constitutional structure


  1. Removal

  • Nothing in Constitution about removal

  • But if Congress can fire people who administer laws, reinserted into execution of laws which is unconstitutional

  • Power over removal too much power over how job is done


Myers v. United States (1926) Taft

  • Congress want to insulate postmasters from Pres.- need Senate approval for removal

  • Unconstitutional, violation of separation of powers because attempted to limit President’s power under Art. II

  • Strongest decision for unitary executive view

  • 2 possible reading:

  1. Expansive: Congress cannot constrain President’s removal power, that is what’s wrong with statute

  2. Narrow: The problem is with the particular constraint, because the Senate is involved

- Court has held this is correct reading

  • Holmes Dissent: Office that owes power to Congress, can be abolished by Congress, should have power to prescribe term of life for it


Humphrey’s Executor (1935)

  • Statute involving FTC-cannot remove unless inefficient, incompetent

  • President challenges: Limitation on removal power is unconstitutional under Myers

  • Court: Rejected this, narrower reading of Myers

  • As long as Congress itself isn’t participating in removal it can set up criteria to constrain President’s power

  • Question: Does this set up headless 4th branch of government, under the control of none of 3 constitutionally recognized branches


Bowsher v. Synar (1986) Burger

  • Gramm-Rudman Act: Budget

  • Gave key role to Comptroller General in carrying out automatic cut provisions

  • Separate legislation: Congress has right to remove Comptroller from office

  • The automatic reduction provisions are struck down because:

  1. Act uses Comptroller’s “executive powers”

  2. Executive powers may not be vested by Congress in itself or its agents

  3. Because Congress can remove Comptroller he is agent of Congress therefore

  4. Comptroller may not constitutionally exercise executive powers given to him by Act

  • Retention of removal power agent of Congress ???

  • There was evidence that both Congress and Comptroller viewed him as part of legislative branch

  • Stevens/Marshall Concurrence: Comptroller is agent of Congress but it was not right of removal that made him so

  • Fact that bulk of his duties are directed at, for benefit of, Congress, not executive

  • Powers exercised are legislative (Majority: they are executive)

  • Unconstitutional for same reason as Myers: person administering the law, not doing a ministerial task, is under too much congressional control

  • White Dissent: Right of removal does not convert into agent of Congress

  • Question is whether there is encroachment of one branch on another

  • If no, no separation of powers problem

  • Bizarre thing here is that Congress’ removal power is intricate, need entire legislative process to get rid of Comptroller, he is probably the most secure in office of anyone

  • No congressional participation in removal of people enacting the laws


Morrison v. Olson (1988) Rehnquist

  • Until this case it seemed that if purely executive officer appointed by President, Congress may not limit right to remove

  • BUT rule here: Congress may limit President’s right to remove even a purely executive officer, so long as the removal restrictions are not of such a nature that they impede the President’s ability to perform his constitutional duty

 Seems that some officials are so closely related to President and his ability to act that President must have unconstrained control over removal

  1. Appointment

  • President is given power of appointment of federal officers Art. II § 2

  • Congress cannot make appointments of federal officials

  • BUT may appoint persons to exercise power essentially of an investigative and informative nature


Buckley v. Valeo (1976)

  • Federal Election Commission: Members to be appointed by Senate and Speaker of the House

  • This violates the appointment clause-President appoints

  • 2 categories of officers:

  1. Principal: President appoints and senate confirms

  2. Inferior Officers: Congress can decide on a different appointment structure (President alone; Courts of Law; Heads of Departments)

  • Any official exercising significant authority over laws of U.S. must be appointed by the first route

  • FEC appointments don’t go either route, so it doesn’t matter how they are classified

  • Even inferior officers, text does not permit Congress itself to appoint

  • Text is directly on point here, unanimous court


Morrison v. Olson (1988) Rehnquist

  • SPECIAL PROSECUTOR: Independent Counsel Case

  • Constitutional Challenges:

  1. Appointment is unconstitutional

  • 2 tiered track: principal and inferior

  • This part seems inevitable

  • Although may in fact be that independent counsel is exercising significant authority over U.S. laws, thereby making him a principal who must be nominated by President and confirmed by Senate (Buckley), does it make any sense to have President nominate person who will investigate him and his high officials?

  • Functionally, makes sense to characterize as inferior

  • A lot of pressure on court to come out this way

  1. Removal structure: Can be removed by Attorney General only for specific reasons

  • Congress may limit President’s right to remove even a purely executive officer, so long as the removal restrictions are not of such a nature that they impede the President’s ability to perform his constitutional duty

  • This structure is ok, does not impermissibly interfere

  • Court does not see this structure as compromising separation of powers as a whole

  • Executive branch given sufficient control to ensure President is able to perform his constitutionally assigned duties

  • In other cases, Court is incredibly attentive to fine grain congressional crossing of boundaries

  • Here, Court does not see executive being undermined- Is this naïve? (Especially given minimal threshold: “Reasonable grounds for further investigation?”

  • How much will executive be hampered by litigation

  • Scalia Dissent: Separation of powers requires President to have full control over investigation and prosecution of violations of law

  • This is the only way to have accountability strong unitary executive view

  • True, President can remove but political process will deal with that problem

  • That is what happened with Nixon

  • It is a mistake to try and take politics out of this, it is a political issue

  • President is accountable to people, in this system the 3 judge panel which appoints- not accountable in any meaningful way and can be very politicized

  • Is it plausible to try and find independent mechanism?

  • Scalia believes structure will be used politically and it is a fraud to think we can insulate it

  • Also problematic to have judge panel convened for sole task of picking 1 person whose sole task is 1 investigation

  • No benefit of generality or perspective


Mistretta v. United States (1989)

  • Congress has considerable flexibility in assigning tasks to judicial branch that may be considered law-making ones

  • U.S. Sentencing Commission: 3 judges on

  • Court rejected challenge that this is unconstitutional delegation of law-making power to judicial branch

  • Exception to rule that non-judicial duties may not be given to judiciary

  • Because judiciary plays the major role in sentencing, allowing some judges to participate in the making of guidelines does not threaten the fundamental structural protections of the Constitution


Final Points:

 Tension between law and politics

 How should Constitution, as a legal text, be interpreted by courts?

 What method of interpretation should be used?



  • Formal/Functional

  • Textually based/ Policy and judgement driven

 Should there be one method?

 Should it be a method that constrains the courts the most? If not, judicial discretion is inevitable






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