Separation of Powers, the Modern Regulatory State, and You.
Separation of Powers, the Modern Regulatory State, and You
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Separation of Powers doctrine confines and constricts agencies from acting without limit. Four areas of importance in this course: – Presidential Oversight/Direction • Portland Audubon Soc’y – Delegation • Stern v. Marshall • American Trucking • CFTC v. Schor • Clinton v. NY – Congressional Oversight/Direction • INS v. Chadha • Bowsher v. Synar – Removal and Appointment • Free Enterprise Fund
Q: To what extent can (and must) the President control regulatory outcomes?
Portland Audubon Soc’y v. The Endangered Species Cmte., Destruction of the habitat of the endangered spotted owl required an exemption from the Endangered Species Act, which could be granted only by the seven-member “God Committee.” Six of the committee members were Presidential appointees and serve at his sufferance. By statute, the “God Committee” was to decide the matter on a record compiled by an administrative law judge and supplemented by other submissions. Plaintiffs alleged that the White House exerted strong ex-parte pressure to change committee votes. The God Committee authorized a number of proposed timber sales affecting the habitat of the spotted owl.
Arguments For Environmental Group Plaintiffs: 1. “God Committee” proceedings are subject to the ex parte communications ban of APA §557(d)(1) (ex parte communications). 2. The President and his staff are covered by that provision.
APA §557(d)(1) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law— • (A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; • (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; • (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:(i) all such written communications; • (ii) memoranda stating the substance of all such oral communications; and • (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; [...]
Government’s Arguments 1.
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Neither the president nor his staff is an “interested person” under the APA. Putting a White House official on the Committee recognized the President’s right to participate The President cannot be regarded as a person “outside the agency” within the meaning of the APA.
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Re: Neither the president nor his staff is an “interested person” under the APA. Court holds that because ex parte communication from the President is likely to have great influence on agency action, the essential purpose of the statute compels conclusion that the President is an interested person.
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Putting a White House official on the Committee recognized the President’s right to participate. Where legally binding regulations delegate a particular discretionary decision to an agency or official, the White House cannot dictate or become involved in committee deliberations. The President cannot be regarded as a person “outside the agency” within the meaning of the APA. Test for separation of powers argument is “whether an act of Congress improperly interferes with a presidential prerogative. Ask: (1) Whether the act prevents the executive from accomplishing its constitutional functions? (2) If the potential for such disruption exists, ask whether the impact is justified by an overriding need to promote objectives within the constitutional authority of Congress?
9th Circuit Holding: For Environmental Plaintiffs
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Clinton v. New York
Line Item Veto Act permits President to sign a bill into law and then to “cancel� concerning: (1) dollar amount of discretionary budget; (2) any item of new direct spending; or (2) any limited tax benefit. Vetoed item must reduce the federal budget.
Limits on Appointment and Removal Power Historical Doctrine The President has plenary removal power over agency officials within the executive branch (Myers v. U.S.), but his prerogative may be limited in the case of agency officials who exercise legislative or judicial power or authority in independent agencies (Humphrey’s Executor).
Morrison v. Olson; Free Enterprise: Clarity? [Issue] Whether provision allowing AG to terminate independent counsel for cause violates the Separation of Powers? [Held] No. Removal provision for cause does not impermissibly undermine executive authority. But see Free Enterprise Fund; where double-for-cause removal provides Separation of Powers concern due to distance from executive authority.