POLS4500: Separation of Powers (final pt. 3)

**Major Questions Doctrine

*In extraordinary cases where "the history and breadth" of authority that the agency has asserted, and the "economic and political significance" of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such authority... the agency must point to "clear congressional authorization" for the authority it claims to have. - Basically, if it is a really important issue, Congress has to actually make a decision, not just delegate the responsibility to an agency. An alternative to the Nondelegation Doctrine by looking at if Congress meant to delegate this authority. - Born out of separation of powers concerns, discouraging the executive from seizing legislative powers, and vice versa discouraging Congress from making excessive delegations of legislative power to administrative agencies. - Leaves the door open for Congress to specify in statute the actions it wants agencies to take.- - Used in West Virginia v. EPA.

Presidential War & Foreign Policy Powers (for history)

- Debate over Congress' power to declare war, and the President's commander in chief powers. *The most often historical argument used is that the President has, throughout history, engaged in wars in various ways without expressed authorization from Congress (the numbers cited in Office of Legal Counsel opinions throughout the years increase). (1) Mexican War: Debate over if the president moving troops provoked a war, or if that is in the power of the president, even though it forced Congress to declare war. (2) World War 1 & 2: The president said he had the power to support democratic nations under threat. (3) Korean War: The president said the UN Security Council, in passing a resolution, declared war, allowing the president to act without regard to Congress. Congress voted to join the UN, so it essentially "Plan of Convention" agreed to allowing the UN to declare war and the president acting on that. (4) Vietnam War: The president has the unilateral power to exercise his commander-in-chief and foreign policy powers for national security interests without authorization from Congress, and Congress is the one with limited powers, because all they have is the power to declare war and power of funding the armed forces. The War Powers Act was Congress' attempt to have more power, but the president vetoed it. (5) War on Terror/Post 9-11: - The UN Security Council, in combination with the president's war powers, is all the authority the President needs to act unilaterally. - The President can also unilaterally act in retaliation to sudden attacks. For preemptive strikes, the President has this power because this deters action from opponents. - Torture powers were established and repealed by different Office of Legal Council (within DOJ) memos, but there was another unreleased one, so we don't know how much it repealed. - One argument for justifying maximum unilateral presidential war powers was that state Constitutions included provisions at the time BEFORE the Nation's founding that said state legislatures need authority from the others before going to war, which meant the Framers could have added this to the Constitution because they knew about it, but they chose not to. - Post 9/11 - Congress authorized military engagement in ISIS harboring-countries through a resolution, but the question was how long that resolution/authorization was going to last.

Formalist versus Functionalist Approaches

- Formalist: Emphasis to the rule of law, like precedent. Tied with originalism and textualism. "Hey branches, stay within the powers outlined for you in the Constitution." - Functionalist: Emphasis on pragmatic values, like efficacy and adaptability. We need to figure out how to live in this modern world and decide pragmatically how policies and actions affect people. Tied more with aspirationalism.

*When an action of Congress requires Bicameralism and Presentment for a Legislative-Veto

An action by Congress is legislative, and therefore, requires bicameralism and presentment according to the Constitution, when: (a) it modifies rights and duties of individuals outside the legislative branch; (b) the enactment would otherwise have required a private law, which is a legislative function; and (c) the nature of the action is inherently legislative. - Legislative Veto: Congress has granted authority to an executive official or an agency, but reserved the right to reject its decisions and actions (as it puts in statute). Sometimes required a majority vote in a legislative committee, or lodged in a chamber of Congress. - Articulated in INS v. Chadha, in which the Court struck down a one-House provision.

*Nondelegation Doctrine

Congress cannot hand over its lawmaking authority, which it was given in the Constitution, to another branch (or an agency under one), because that would violate the separation of powers. The question becomes, when Congress does delegate power, how broad it is, because too broad is unconstitutional, but narrow and in conjunction with the Constitution is likely valid.

*Presidential War & Foreign Policy Powers (summary)

Basically, the President has the power to define war for constitutional purposes. - The Office of Legal Counsel has defined war for constitutional purposes as: A war is military operations that are prolonged with substantial military engagements, involving the exposure of troops at risk over a substantial period, as reflected in the War Powers Act (although that act is not binding whatsoever). They justified military forces in Libya under this, saying no ground forces were called, and it was a limited engagement not aimed at occupying territory, meaning the airstrikes were ***"limited in their nature, duration, and scope." The President have largely unilateral power over troops at this point, but this power really just comes from the president trying to call conflicts anything but wars for constitutional purposes and justifying his actions after the fact. Congress is really quite powerless here, because all they can do is stop funding (which looks bad politically). A President at this point would not want to backtrack on memos from the Office of Legal Counsel, and presidents historically agreeing that they have had immense powers since war with France — a time at which the Founders were running the government, meaning they were fine with this. And Congress would not have standing to bring a case here, and neither would citizens, so really, the only one who could bring this suit would be a member of the military saying "I don't want to be in this war for X ,Y and Z reasons." - in exam: Go through the president's war and power through Constitutional text and structure, then historical practice.

**Executive Privilege

Claim that certain executive department documents and information can be kept confidential and do not normally have to be revealed to the judicial or legislative branch (or public). Might be used to refuse to comply with a subpoena for documents or testimony. - Born out of a the Separation of Powers Principle and the general need for confidentiality as vested with so much executive power under Article 2. ...But there is no explicitly provision for executive privilege in the Constitution. It is argued to be an implied power, and can apply outside the president (like advisors), but it has no real established scope at this time. - During the ratification of the Jay Treaty, President George Washington refused to release documents from negotiations with Great Britain, emphasizing the value of secrecy in diplomatic relations, and that such documents were irrelevant to Congress. Congress wanted the negotiation documents to inform its decision on ratifying the Treaty. - Questions become, how far does the privilege extend, and under what circumstances might it be asserted? When might it be overridden?

Separation of Powers during the Civil War

During the Civil War, President Lincoln often acted unilaterally, using Commander-in-Chief powers, under which he: raised troops, blockaded Southern ports, declared martial law, suspended habeas corpus, and issued the emancipation proclamation. *How did he justify it under the Constitution? Lincoln argued the president is compelled to act out of a need for national public safety, and Congress would have ratified IF it were in session. He sort of said, "Hey, this is legal, and even if it wasn't, Congress would ratify it after the fact, making it legal." - Question becomes if this is a one-time power because Lincoln is acting agreeably — are these broad powers appropriate for any president?

**NFIB v. Department of Labor, OSHA, U.S. (2022)

FACTS: In 2021, the Department of Labor, Occupational Safety and Heal Administration (OSHA) under President Biden issued a mandate requiring all employers who employed more than 100 persons to either require workers be vaccinated or wear a mask and have a weekly negative test for COVID (including private businesses), claiming authority under the Occupational Safety and Health Act of 1970, which empowers OSHA to pass rules that promote "safe and healthful working conditions" and permits "emergency temporary standards," when "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful o from new hazards." Basically everyone filed suits, one by the National Federation of Independent Business (NFIB), but suits were consolidated. A lower court refused to stay the mandate. ISSUES: Did OSHA exceed its STATUTORY AUTHORITY in mandating that employers with at least 100 employees require covered workers to receive a COVID vaccine or else wear a mask and be subject to weekly testing? HOLDINGS: Issued a stay of OSHA's mandate, in favor of NFIB. The challengers would likely succeed on the merits that OSHA did not have authority to issue the mandate because COVID is not an occupational hazard in most workplaces AND, importantly, issuing a mandate that would affect so much of the population falls under the Major Questions Doctrine, as such is of immense economic and political significance, and Congress must provide clear congressional authorization for something so major. REASONS: - Per Curiam: Issuing a mandate that would affect so much of the population falls under the Major Questions Doctrine, as such is of immense economic and political significance, and Congress must provide clear congressional authorization for something so major. Also, it is clear the Act did not authorize this mandate. COVID is not an occupational hazard in most workplaces because of its universal risk in other environments. OSHA could still regulate a workplace where COVID poses specific danger, like crowded or cramped environments. Ultimately, this is a general public health measure, which is impermissible, as OSHA only has the authority to regulate for "occupational safety or health standard" by statute. The challengers would likely succeed on the merits that OSHA did not have authority to issue the mandate. Congress gave OSHA, in the Act, the authority to enforce occupational safety and health standards that are "reasonably necessary or appropriate to provide safe or healthful employment," and they must undergo a process that includes notice, comment, and an opportunity for a public hearing, but there is an exception for "emergency temporary standards," which "take immediate effect," but they are permissible only in the narrowest of circumstances: the Secretary must show "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," and that the "emergency standard is necessary to protect employees from such danger." - Concurring: The fact that public health is usually within the police powers of states makes this even more under the Major Questions Doctrine, as there is no way Congress intended that. - Dissenting: The pandemic directly affects the safety of workplaces, and, therefore, OSHA has the authority to regulate to curb the effects of the pandemic in workplaces, as Congress intentionally gave OSHA the authority to address emergencies that it itself could not predict. IMPLICATIONS: A universal mandate would affect the lives of most everyone, making this invalid under the Major Questions Doctrine.

Prosecutorial Discretion

Executive officials have the authority to make decisions about how best to enforce the law in particular cases given limited resources (for example, de-emphasizing misdemeanor offenses to focus more resources on felonies). This is not a general authority to simply ignore statutes that they do not like as a matter of policy, because still, at the end of the day, the President must faithfully execute the laws, and Congress creates those laws — The Take Care Clause, "to care that the laws be faithfully executed." For executive agencies, when Congress vests authority in them, the agency has discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action. - After the Development, Relief, and Education for Alien Minors (DREAM) Act (the same as DACA), Obama made a series of executive actions that stopped deportations and gave quasi-legal status and work permits to immigrants who entered the country as children or were the parents of green card holders. A circuit court decision found that Obama overstepped in prosecutorial discretion by choosing not to prosecute basically more often than not, which is not "faithfully executing" Congress' law.

*Myers v. United States, U.S. (1926)

FACTS: A 1876 Congressional Act required by law that postmasters of the first, second, and third classes be appointed and can be removed by the President with the advice and consent of the Senate. President Wilson removed Myers, a postmaster of the first class, without notifying the Senate, let alone seeking its approval. ISSUES: Did the Act unconstitutionally restrict the President's power to remove appointed executive officials? HOLDINGS: Yes, striking down the Act, because denying a president of removal power would obstruct his constitutional duty of executing laws, which also makes this a violation of the separation of powers, especially seeing as executive power (including postmasters) is vested in the president via Article 2. REASONS: - Majority: Executive officers will not obey the president if their boss (the president) can't fire them. The Constitution requires that president's have the advice and consent of the Senate to appoint executive officials, but it is silent on the issue of removal — but denying a president of this power would obstruct his constitutional duty of seeing that the laws be faithfully executed, making this a violation of the separation of powers, especially seeing as executive power (including postmasters) is vested in the president via Article 2. Also corroborated in history from debates in the First Congress. Therefore, the President has the exclusive power to remove appointed executive officials. - Dissenting: The Senate is in charge of the rest of the postmaster's position (and all executive officers), so that must include removal. Senate could abolish the entire department if it wanted. IMPLICATIONS: This ruling is narrowed in Humphrey's Executor, saying this case only established that a postmaster general of the first class can be removed unilaterally by the president. Taft Court, so broad interpretation of the president's appointment and removal powers.

***United States v. Nixon, U.S. (1974)

FACTS: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. ISSUES: Does the President have the constitutional power for absolute executive privilege to safeguard certain information, and are such claims immune from judicial review? HOLDINGS: No and no. The President's executive privilege is qualified, not absolute. The President cannot use executive privilege to withhold evidence that is "demonstrably relevant in a criminal trial"; The President is not completely above the fundamental demands of law and justice; SCOTUS is the final arbiter on questions arising under the Constitution, including the President's executive privilege claim, which and because it is allegedly derived from Article 2. REASONS: The President's EP is qualified, not absolute. The separation of powers principle and the general need for confidentiality do not give the President an absolute, unqualified EP — AND — EP claims, without a military, diplomatic, or national security basis, will be given less deference and weighed against "the fundamental demands of due process of law in the fair administration of justice" (5th, 6th, and 14th amendments). The infrequent disclosure of the president's conversations with aids for the constitutional requirements of criminal prosecution will not have a chilling effect. Also, existing a subpoena consists a justiciable controversy. IMPLICATIONS: The President's EP is qualified, not absolute. The separation of powers principle and the general need for confidentiality do not give the President an absolute, unqualified EP — AND — EP claims, without a military, diplomatic, or national security basis, will be given less deference than fundamental constitutional requirements for justice.

***United States v. Curtiss-Wright Export Corporation, U.S. (1936)

FACTS: A joint Congressional resolution authorized the President, at his discretion, to regulate arms sales to Bolivia and Paraguay, as the countries were engaged in a war. The Curtiss-Wright Export Corp. — a weapons manufacturer based in the U.S. — sold fighter planes and bombers to Bolivia during the war, which violated a proclamation issued by President Roosevelt, in which he banned U.S. weapons manufacturers from aiding either side of the war. Challenging its indictment, Curtiss-Wright argued that Congress had violated the non-delegation doctrine in allowing the executive branch to make decisions that were matters of foreign policy legislation. ISSUES: Under the resolution, did Congress violate the nondelegation doctrine under the separation of powers by giving foreign policy power to the President? HOLDINGS: Upheld the resolution. The Constitution implies that it vests sole foreign policy powers in the President because the nature of foreign affairs empowers the executive branch to act in ways that Congress is unable to. The Sole Organ Doctrine. REASONS: - Majority: The Constitution implies that it vests sole foreign policy powers in the President because the nature of foreign affairs empowers the executive branch to act in ways that Congress is unable to. Therefore, Congress could delegate the power of discretion to determine what impact a certain policy might have on foreign affairs and make decisions accordingly (broad decisions, including prohibiting and leaving alone and regulating) to the President without specifically authorizing his every move — basically, the nondelegation doctrine and is just kind of irrelevant here. Congress did not interfere with the President's Article 2 powers because they allowed him to really do anything and said everything concurrently with his powers, but that can be an issue elsewhere. The states have never had international powers, so federalism was not an issue here. IMPLICATIONS: The Constitution implies that it vests sole foreign policy powers in the President because the nature of foreign affairs empowers the executive branch to act in ways that Congress is unable to, articulating the Sole Organ Doctrine. Expanded the President's foreign policy powers.

***Watkins v. United States, U.S. (1957)

FACTS: A labor organizer, John Watkins, was called to testify in hearings conducted by the House Committee on Un-American Activities. Watkins agreed to testify on his alleged connections with the Communist Party and to identify current members of the Party, but he refused to give information on individuals who had left the Party. He was convicted for contempt of Congress and appealed, arguing that such questions were beyond the authority of the Committee. ISSUES: Were the investigative actions of the Committee an unconstitutional exercise of congressional power? HOLDINGS: Yes, overturning Watkins' conviction as a violation of the 5th Amendment Due Process Clause. T​​he activities of the House Committee were beyond constitutional congressional power to investigate because it Committee's actions here were vague — there was no limit to them at all, and Congress may only investigate in "furtherance of a legislative purpose." REASONS: - Majority: Congress may only investigate in "furtherance of a legislative purpose." Congress cannot expose the private affairs of individuals just for the sake of exposure. T​​he activities of the House Committee were beyond constitutional congressional power to investigate because its Committee's actions here were vague — there was no limit at all to the Committee's actions under the resolution that created them, etc. Congress' investigatory powers cannot be limitless. Watkins was not informed of the pertinence of the questions asked of him, meaning he was not given the opportunity to determine if he had the right to refuse to answer, overturning his conviction as a violation of the 5th Amendment Due Process Clause. - Concurring: Congress needed to specify the scope of its inquiry to avoid a Due Process violation. - Dissenting: As long as the Committee's questions were legitimate and pertinent to its legislative goal, then the Court should not interfere, as that violates the separation of powers. IMPLICATIONS: Congress may only investigate in "furtherance of a legislative purpose," and Congress cannot expose for the sake of exposure.

**Trump v. Mazars USA LLP, U.S. (2020)

FACTS: The House Committee on Oversight and Reform subpoenaed Mazars — the accounting firm for President Donald Trump (but in his capacity as a private citizen) and Trump's businesses — for Trump's private financial records. The Committee said the requested documents would inform its investigation into whether Congress should amend or supplement its ethics-in-government laws. Trump sued to prevent Mazars from complying, arguing that the information serves no legitimate legislative purpose. The lower courts granted a summary judgment in favor of the House, finding its actions constitutional. ISSUES: Does the separation of powers principle prohibit subpoenas issued to a third party for the President's private-citizen financial records? HOLDINGS: Vacated and remanded. The lower courts did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President's information. The President deserves some protections from Congress over his non-privileged, private-capacity documents. Established ​the Mazars Test. REASONS: - Majority: The lower courts did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President's information. A congressional subpoena is valid only if it is "related to, and in furtherance of, a legitimate task of the Congress" and serves a "valid legislative purpose." Congress may not issue a subpoena for the purpose of "law enforcement," because that power is assigned to the Executive and the Judiciary. Established ​the Mazars Test. The president deserves some protections over his non-privileged and private documents, as he cannot use EP here, but it would be a violation of the separation of powers principle if Congress had a limitless subpoena power in this regard. - Dissenting: The House has no justification for this subpoena at all unless it is engaging in impeachment proceedings. IMPLICATIONS: The President deserves some protections from Congress over his non-privileged, private-capacity documents. Established ​the Mazars Test.

***Clinton v. City of New York, U.S. (1998)

FACTS: Consolidates two challenges to the constitutionality of cancellations, made by President Clinton, under the Line Item Veto Act, in which the president could strike provisions from bills after they were approved by Congress, and Congress would not see the bills again before the president could approve them into law. A legislator first tried to sue, but the case was moot, as there is no general legislative standing. In the main case, New York City challenged the President's cancellation of a provision in a spending act, which relinquished the federal government's ability to regain more than $2 billion in taxes against Medicaid providers for New York. ISSUES: Did the President's ability to selectively cancel individual portions of bills and approve the edited bill, under the Line Item Veto Act, violate the Presentment Clause in Article I? HOLDINGS: Struck down the Act as an unconstitutional violation of the Presentment Clause; legislation that passes both Houses of Congress must either be ENTIRELY approved (signed) or rejected (vetoed) by the President, and a veto must be sent back to Congress for an override vote. REASONS: - Majority: The president cannot act unilaterally regarding legislation, only in cooperation with Congress, which is the Presentment Clause. Under the Clause, legislation that passes both Houses of Congress must either be ENTIRELY approved (signed) or rejected (vetoed) by the President. The President in effect "amended" the laws before him by canceling only selected portions of the bills under unilateral authority granted by the Act. Such discretion violates the legislative procedures of Article I, the Presentment Clause, and therefore, the separation of powers. The Constitution would give the president the authority to act unilaterally here if the Framers intended that. To Article III Standing, all the plaintiffs suffered sufficiently immediate and concrete injuries for standing to challenge the President's actions. - Concurring: This is a violation of the Nondelegation Doctrine because the president can use this to discriminate against certain states and taxpayers, without their representatives having power. - Dissenting: This is a constitutional delegation of power from Congress to the president. It would be inefficient for Congress to break down each spending provision into one bill for a veto or approval. This is in Youngstown's first category, where you should ask (which he answered "no" to all): (1) Has Congress given the president the wrong kind of executive power? (2) Has Congress given the power to encroach upon Congress' own constitutionally reserved territory? (3) Has Congress given the president too much power, violating the nondelegation doctrine? IMPLICATIONS: Developed the Test for Congress' Authorization of Power for Category 1 of Youngstown's Scope (dissent). The president cannot act unilaterally regarding legislation, only in cooperation with Congress, which is the Presentment Clause. Limited unilateral authority of the president.

***Gundy v. United States, U.S. (2019)

FACTS: Gundy was convicted of sexual assault in Maryland while on supervised release for a prior federal offense. After serving his sentence for the Maryland crime, Gundy was to be transferred to federal custody to serve his sentence for violating supervised release. The Sex Offender Notification and Registration Act (SORNA) was passed a year later, which, in one provision, gave the U.S. Attorney general authority to specify the application requirements of sex offenders convicted before the enactment of the law, so long as he enforced SORNA onto pre-Act, as Congress required. Gundy had to travel by bus to New York, but state law in New York required that he register as a sex offender. Gundy made the trip, but did not register in either state. He was indicted under SORNA for traveling to and staying in New York without registering as a sex offender, a condition created by the AG. He was convicted and sentenced, but Gundy challenge his conviction, arguing SORNA unconstitutionally delegated authority to the AG to decide the application requirements for pre-Act offenders. ISSUES: Does the Act's delegation of authority to the AG on deciding the application requirements for pre-Act offenders violate the nondelegation doctrine under the separation of powers? HOLDINGS: No, upholding the provision because Congress provided the AG with an "intelligible standard" to enforce the Act, as from J.W. Hampton. REASONS: - Majority: Congress provided the AG with an "intelligible standard" to enforce the Act, as from J.W. Hampton. Congress decided not to set the application requirements itself because immediately registering all pre-Act offenders was not possible, so Congress told the AG that SORNA must apply to pre-Act offenders but that he could decide how, which served as the intelligible standard. And, the AG did not violate this in any way. - Dissenting: Congress may not delegate powers that are strictly legislative. This standard for nondelegation gives the AG power to determine criminal code, which affects the people and should be up to Congress. IMPLICATIONS: Used the intelligible principle standard for Congress to provide to the executive in implementing and enforcing laws. Broadened the powers of the executive under delegation.

Blue v. Beach, Indiana Supreme Court (1900)

FACTS: In 1891, the board of health in Indiana issued a regulation, Rule 11, directing the local health boards to compel the vaccination or re-vaccination of all exposed persons during smallpox epidemic. A local health board directed the local school board and its superintendent to exclude unvaccinated students from school. A parent (Blue) felt that the vaccine had more risks than the fading epidemic, refusing to vaccine their son, so the superintendent excluded his son from school. Blue brought an injunction in state court barring school officials from excluding his son from public school. The trial court ruled in favor of the school officials, but Blue appealed to the state supreme court, arguing his son had the right under statute to attend school, but that there was no statute requiring vaccination in order to attend school, saying the board of health invalidly exercised a legislative power. ISSUES: Could the board of health exercise a legislative power to fulfill its statutory duty, which was granted by the legislature? HOLDINGS: Yes. State legislatures can delegate the execution of police powers to agencies and administrations with the stipulations that they stay within their conferred powers, be reasonable, and within the fundamental principles of justice. The vaccination order was a reasonable action under the board's delegated police powers by the legislature in fulfilling the board's statutorily imposed duty of preventing infectious disease. REASONS: When the state legislature passed the statute creating the board of health, it vested certain powers in it, including the powers to adopt rules and by-laws to prevent the spread of diseases — but delegations of police powers to agencies and administrations must stay within their conferred powers, be reasonable, and within the fundamental principles of justice. This statute charged local boards with the task of removing known causes of diseases, taking action to stop the spread of disease, removing nuisances to public health, and performing other duties required of them by the state board. Public health is the most vital to state governments as a police power. There was evidence of a smallpox outbreak, justifying the vaccine mandate. IMPLICATIONS: State legislatures can delegate the execution of police powers to agencies and administrations with the stipulations that they stay within their conferred powers, be reasonable, and within the fundamental principles of justice. Police powers for public health.

***Youngstown Sheet & Tube Co., v. Sawyer ["Steel Seizure Case"], U.S. (1952)

FACTS: In 1952, during the Korean War, President Truman issued an executive order directing the Secretary of Commerce (executive department) to seize and operate most of the nation's steel mills in order to avert the anticipated effects of a strike by the United Steelworkers of America union, arguing such was essential to the war effort and that the president has intrinsic constitutional authority under Article II to take such an action for national interest. He reported his action to Congress, and Congress did not take any action at that time. ISSUES: Did the President have the constitutional authority to seize and operate the steel mills (private property) without authorization from Congress? HOLDINGS: Against the president because he cannot take possession of private property without authorization from Congress or the Constitution. REASONS: - Majority: He did not have the authority to seize private property in the absence of either an enumerated authority under Article II, or statutory authority conferred by Congress: There was no congressional statute that authorized the President to take possession of private property, and the president's military power as Commander in Chief of the Armed Forces does not extend to labor disputes. The president is not a lawmaker — he can only recommend or veto — and this was an attempt at lawmaking. - *Concurring: Less absolute. Defined the Scope of the President's Authority To Act Unilaterally into 3 categories of separation-of-powers cases between Congress and the president, starting with the most important: (1) The president acts pursuant to an expressed or implied authorization from Congress = president has Article 2 powers + delegated powers from Congress, (2) The president acts in the absence of either a Congressional denial or grant of authority, the "zone of twilight" = president only has Article II powers concurrent with Congress, or (3) The President takes actions incompatible and in defiance of the expressed or implied will of Congress = president has Article 2 MINUS whatever Congress took away. Here, this is analyzed under the 3rd category because Congress was expressively against this action, and since the president does not have independent war powers, this was an unconstitutional action from the president. - Dissenting: President can seize private property in national emergencies. IMPLICATIONS: Scope of the President's Authority To Act Unilaterally in Separation-of-Powers Cases. The President cannot take possession of private property without authorization from Congress or the Constitution. An early check on broad executive power despite largely being a political question.

***West Virginia v. Environmental Protection Agency, U.S. (2022)

FACTS: In 2015, the Environmental Protection Agency issued new rules relating to carbon dioxide emissions, including using its existing statutory authority (claiming it was derived from the Clean Air Act) to impose limits on carbon emissions for new coal and gas powered plants, with similar guidelines for existing plans. The EPA estimated such limits would result in billions in compliance costs, the retirement of many coal plants, and an increase in the cost of electricity. Several states and private parties filed suits, and SCOTUS issued a stay in the regulations. In 2019, the Trump administration repealed the Clean Power Plan — saying it exceeded its statutory authority — replacing it with more modest rules regarding existing power plants. When challenged in court, states were split. ISSUES: Did the EPA have the authority it claimed to have from Congress under the Clean Air Act to cap emissions and alter electricity generation in such a consequential way as under the new rule? HOLDINGS: Against the EPA. Congress did not grant the EPA in the Clean Air Act the authority to devise emissions caps and alter electricity generation as the EPA did in the Clean Power Plan, and, importantly, under the Major Questions Doctrine, the EPA did not have adequate statutory support for its highly contested and consequential policy. REASONS: - Majority: Congress did not grant the EPA in the Clean Air Act the authority to devise emissions caps and alter electricity generation as the EPA did in the Clean Power Plan — under the Major Questions Doctrine, the EPA did not have adequate statutory support for its highly contested and consequential policy. Congress makes major policy decisions itself, which is why it would not leave such politically and economically significant decisions to the EPA. - Concurring: Federalism is another consideration alongside the Major Questions Doctrine. - Dissenting: Congress gave the EPA broad authority because it is best suited to address these issues — they answered the major questions by giving broad authority. Congress gave the EPA the authority to decide and implement the "best system of emission reduction," which, therefore, includes this. Congress often gives agencies broad powers because they are experts that can better address new events as they arise. The Court is making itself the decider on climate policy here. IMPLICATIONS: Used the Major Questions Doctrine to strike down rules of the EPA because it did not have adequate statutory support for its highly contested and consequential policy. This would mean that Congress would likely hold hearings and fact-finding, even calling on experts of the EPA to testify, to create these laws themselves — but that's going to be harder because then it's political (like a Joe Manchin situation).

***INS v. Chadha, U.S. (1983)

FACTS: In one provision of the Immigration and Nationality Act (INA), Congress authorized either house of Congress to invalidate and suspend deportation rulings coming from the U.S. Attorney General, who oversaw the Immigration and Naturalization Services (INS) (DOJ). Chadha stayed in the U.S. past his visa deadline, but an immigration judge under INS suspended his deportation. The House of Representatives alone vetoed the ruling and chose to deport Chadha. ISSUES: Did the legislative veto provision of the INA, which granted veto power to one house, violate the Presentment process or Bicameralism? HOLDINGS: Yes, striking down the provision because, under when an action of Congress requires Bicameralism and Presentment for a Legislative-Veto, Congress here cannot grant itself a legislative veto over the actions of an executive agency because that modifies the rights of a branch other than the legislative (the executive branch) BECAUSE Congress delegated authority to this executive agency, which it has to officially revoke if that's what it wants, not just veto case-by-case. REASONS: - Majority: Under when an action of Congress requires Bicameralism and Presentment for a Legislative-Veto... Congress here cannot grant itself a legislative veto over the actions of an executive agency because that falls under (a) "modifies the rights of individuals outside the legislative branch" (the executive branch) BECAUSE Congress delegated it authority here, which it has to officially revoke if that's what it wants, not just veto case-by-case. The Framers would have written in a legislative-veto, but they knew this would have violated the separation of powers. - Concurring: Bicameralism and Presentment are still required here, and this was actually an encroachment on the judiciary, who decides who meets the legal requirements to have residence in America. - Dissenting: The legislative veto is necessary and its absence from the Constitution does not prohibit it, and Congress delegated this authority to the executive which did not require bicameralism or presentment. IMPLICATIONS: Articulated when an action of Congress requires Bicameralism and Presentment for a Legislative-Veto. Contrasts with Clinton v. City of New York because this is about the Legislative Veto, rather than a Presidential Veto.

***Clinton v. Jones, U.S. (1997)

FACTS: Paula Jones sued Bill Clinton while he was President over his past sexual advances toward her when he was serving as the Governor of Arkansas and she was a state employee, claiming that her rejection of Clinton's advances resulted in punishment from her supervisors. President Clinton requested that the federal suit be suspended, which a district court granted, but Clinton sought to invoke presidential immunity to completely dismiss the suit. The district court refused to dismiss the case for immunity, but the judge ordered the stay of trial until after Clinton's Presidency. A circuit court agreed with denying the dismissal, but reversed the stay of the trial, calling it a "functional equivalent" to an unlawful grant of temporary presidential immunity. ISSUES: Is a sitting President, for separation of powers reasons, entitled to absolute immunity from federal civil litigation from events that transpired prior to his taking office? (not deciding anything for state suits) HOLDINGS: No. The Constitution does not make the President immune from civil litigation — that does not significantly obstruct the operation of the executive branch or the president's constitutionally required duties — involving actions committed before entering office, and there is no requirement to stay the case until the President leaves office. REASONS: The Constitution does not make the President immune from civil litigation — that does not significantly obstruct the operation of the executive branch or the president's constitutionally required duties — involving actions committed before entering office, and there is no requirement to stay the case until the President leaves office. While the independence of our government's branches must be protected under the separation of powers, the Constitution does not prohibit these branches from exercising appropriate control over one another. - Concurring: The President should be able to make a showing that civil litigation would interfere with his constitutional duties, thereby justifying Presidential Immunity. IMPLICATIONS: The separation of powers principle does not make the President immune from civil litigation for actions committed prior to entering office that do not significantly obstruct the operation of the executive branch or the president's constitutionally required duties.

***Humphrey's Executor v. United States, U.S. (1935)

FACTS: President Hoover appointed — with the advice and consent of the Senate— Humphrey as a commissioner of the Federal Trade Commission (FTC), which is an independent regulatory commission, meaning it is created by Congress and not under the executive (have "commission" in the title). In 1933, President Roosevelt, a Democrat, asked for Humphrey's resignation because the commissioner, a Republican, kept blocking his new deal policies. Roosevelt fired Humphrey when he refused to resign. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." Humphrey's executor brought a state suit to recover his loss of salary after he died. ISSUES: Did the FTC Act unconstitutionally restrict the President's removal powers of an appointed officer that oversaw a quasi-legislative and quasi-judicial agency? HOLDINGS: The FTC Act was constitutional, so the President's dismissal of Humphrey for his politics and policies was not a sufficient justification under the Act. The President must follow Congress' laws in removing appointed officers who oversee quasi-legislative or quasi-judicial functions, but he has exclusive removal powers for solely executive appointed officers (based on their office's duties). REASONS: The President must follow Congress' laws in removing appointed officers who oversee quasi-legislative or quasi-judicial functions, but he has exclusive removal powers for solely executive appointed officers (based on their office's duties). Distinguished this case from Myers because that case narrowly affirmed the President's right to remove specifically a postmaster of the first class as a unit of the executive department and everything else was based on dicta, and that does not matter for precedent. The FTC is not solely an executive department, as it was created by Congress to perform quasi-legislative and quasi-judicial functions, so the President has to comply with the Act. IMPLICATIONS: The President must follow Congress' laws in removing appointed officers who oversee quasi-legislative or quasi-judicial functions, but he has exclusive removal powers for solely executive appointed officers (based on their office's duties).

***Seila Law LLC v. Consumer Financial Protection Bureau, U.S. (2020)

FACTS: The Consumer Financial Protection Bureau (CFPB) was investigating the Seila Law LLC law firm. In the investigation, the CFPB issued a civil investigative demand to Seila that required the firm to respond to several interrogations and requests for documents. Seila refused to comply with the demand, so the CFPB filed a petition in a district court to enforce Seila to comply, which ordered Seila to comply. Seila appealed, arguing that the order was invalid because the CFPB's structure is unconstitutional, saying it violated the separation of powers. The CFPB is an independent agency headed by a single director who exercises substantial executive power, but can only be removed by the President for "cause" — inefficiency, neglect, or malfeasance. The for-cause restriction was argued to unconstitutionally conflict with the President's ability to ensure that the laws are faithfully executed. ISSUES: Does the substantial executive authority of the CFPB's director, but the restriction on the president to only be able to remove the director for-cause, a violation of separation of powers? HOLDINGS: Unconstitutional. The CFPB's single director, removable only for inefficiency, neglect, or malfeasance, violates the separation of powers because the characteristics of the CFPB are not similar to the FTC, and the director of the CFPB is not an inferior officer. Seila did not have to comply with the request for documents. REASONS: - Majority: The CFPB's single director, removable only for inefficiency, neglect, or malfeasance, violates the separation of powers because, under the Test for when Congress can limit the President's appointment & removal powers, the characteristics of the CFPB are not similar to the FTC, and the director of the CFPB is not an inferior officer, as they have immense duties and a policymaking role. The CFPB's structure is also totally unprecedented in giving one individual immense executive authority (dictatorial like) that is not the president. - Dissenting: There has to be a reason for why a single department head is at a higher risk of corruption than a multi-member body. For-cause removals are to preserve the agency's independence from political pressure. IMPLICATIONS: Established the Test for when Congress can limit the President's appointment & removal powers.

Morrison v. Olson, U.S. (1988)

FACTS: The Ethics in Government Act of 1978 created a special court and empowered the Attorney General to recommend to that court the appointment of an "independent counsel" (IC) to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws (born out of the Nixon sandals). The IC was only removable for a showing of good cause. ICs were mostly insignificant until an assistant AG (Olson) testified before Congress on the proceedings of a climate policy congressional investigation, which some believed to be false statements. The AG chose to appoint an IC (Morrison) to investigate the matter. The IC sought a subpoena against Olson, but Olson refused, arguing the IC was invalid because the statute that created the position had an unconstitutional structure that violated the Appointments Clause, the principle of separation of powers, and the Vesting Clause. ISSUES: Did the Act, for its IC structure, violate the Appointments Clause, principle of separation of powers, or Vesting Clause? HOLDINGS: No, the Act does not violate the Appointments Clause, principle of separation of powers, or Vesting Clause because it does not increase the power of the judiciary or legislative branches at the expense of the executive, and the IC is an inferior officer because the scope and jurisdiction of their role is limited under statute, the position has a tenure limit and the appointee is removable for good cause by a superior executive official. REASONS: - Majority: The Act does not increase the power of the judiciary or legislative branches at the expense of the executive, and the IC is an inferior officer because the scope and jurisdiction of their role is limited under statute, the position has a tenure limit and the appointee is removable for good cause by a superior executive official. The separation of powers are not of concern here because the IC does not have the ability to impair the constitutional duties of any branch. Congress has the authority to vest appointment power under the Appointments Clause, and it also has the ability to establish a special court that it can define the scope of the IC's role, as each IC will have very different needs. In this way, by not establishing the IC or its court under the judicial system in Article III or the executive, this actually is best in line with the separation of powers. And, this is definitely not a violation of the separation of powers, as the executive branch can remove the IC, which is allowing the executive to enforce the law (the Act), and Congress has no supervision over the IC. - Dissenting: The Constitution does not allow for the sole authority of the executive to conduct criminal prosecutions to be delegated to another branch at all. IMPLICATIONS: Congress actually decided to not renew this statute after this case was handed down (reverting to Special Counsels, appointed by the AG) because the dissent here was strong. Took away the president's sole power to prosecute.

*Biden v. Missouri, U.S. (2022)

FACTS: The Secretary of Health and Human Services administers the Medicare and Medicaid programs within the Centers for Medicare and Medicaid Services (CMS). In 2021, under instruction from President Biden, the Secretary announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID-19. Missouri and other states challenged the rule, arguing CMS did not have statutory authority to issue the rule and that CMS failed to provide notice and comment before issuing the rule. Lower courts sided with the states. ISSUES: Does Biden (Department of HHS) have the authority to enforce a rule requiring healthcare workers at facilities that participate in Medicare and Medicaid comply with the COVID mandate UNDER CONGRESS' STATUTE? HOLDINGS: In favor of Biden because (1) Congress authorized this vaccine mandate by authorizing the Secretary to impose conditions on the receipt of funds that they find necessary for health and safety, and (2) CMS had the good cause of vaccinating healthcare workers before flue season to forego notice and comment. REASONS: - Per Curiam: (1) Congress authorized this vaccine mandate by authorizing the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that they find necessary in the interest of health and safety. The secretary determined that the vaccine was necessary to prompt and protect the health and safety of patients by helping prevent them from contracting a deadly disease by vaccinating healthcare workers. Preventing healthcare workers from infecting patients is consistent with the purpose of healthcare, and Medicaid and Medicare funds recipients have always had to abide by requirements to participate, including the qualifications and duties of healthcare workers themselves. States have imposed vaccine mandates in the past, meaning the agency has not had to impose its own thus far. The Secretary did not act in an arbitrary or capricious manner, as they acted within a "zone of reasonableness." (2) CMS had good cause under federal law to forego notice and comment, and it backed such up with data — the Secretary was required to show "something specific," and vaccinating individuals before flu season satisfied that requirement. The good cause exemption also says the agency did not have to consult with state agencies in advance of issuing its rule. - Dissenting: Had Congress wanted to grant CMS power to impose a vaccine mandate, it would have specifically authorized one. Congress only gave the secretary the authority to imposed necessary conditions for health and safety under specific provisions, such as nursing, for example. The vaccine mandate also severely alters the federalism balance. IMPLICATIONS: The CMS acted property under Congress' delegation to the Secretary to impose conditions on the receipt of funds that they find necessary for health and safety. Contrast with NFIB v. Department of Labor, OSHA.

**Department of Commerce v. New York, U.S. (2019)

FACTS: The Secretary of the Department of Commerce declared he was adding a question of citizenship to the 2020 Census, claiming the dept. needed the information to administer the Voting Rights Act, but the Secretary got the DOJ involved, so he asked the DOJ to write a memo to justify the addition. The Census determines the allocation of representatives among states under the Constitution and the allocation of federal funds under federal statutes. Concerned that the question would increase nonresponse rates that would reduce their representation in Congress and in the federal funds, New York and other states filed a lawsuit claiming the adding of the citizen question violated the Enumeration Clause, the Census Act, and the Administrative Procedure Act (APA). The district court determined the Dept. of Commerce acted arbitrarily and capriciously, violating the APA. ISSUES: (1) Did the plaintiffs have standing? (2) Did the Dept. violate the Census Act and Constitution by seeking to add a citizenship question to the upcoming census? (3) Did the Secretary abuse their agency discretion by violating the Arbitrary and Capricious Standard in the APA in having unstated/pretextual reasons for the census question? (4) Could the district court probe the mental process of an agency decision maker by compelling testimony from high-ranking executive branch officials without evidence that they acted illegally? HOLDINGS: Both the reasoning and actions of agencies need to fall within the statutory authority granted by Congress. This really would have been fine if he didn't lie... (1) Yes (2) No, the question itself does not violate the Census Act or Constitution (3) Yes, the Secretary acted arbitrarily and capriciously by giving a pretextual reason for his decision, which makes the addition of the question invalid under the APA (4) Yes because the decision to add the question is considered a reviewable action under the APA (which is why the district court had remanded back to the agency for justification). REASONS: - Majority: The Secretary acted arbitrarily and capriciously BECAUSE of the PRETEXTUAL reasons leading to his decision. Both the reasoning and actions of agencies need to fall within the statutory authority granted by Congress. (1) The loss of federal funds for states due to the proved likelihood of undercounting constitutes a concrete and imminent injury. (2) The Census Act, derived from the Enumeration Clause, has historically given Congress broad authority over the Census. *(3) The Census Act, by outlining requirements for agency decision-making, established that the Census is not a discretionary act by the Secretary (which would not be judicially reviewable under the APA) making the Secretary's decision subject to judicial review. The APA entails a presumption of judicial review (meaning the agency will naturally have to disclose the reason for its action), but it only urges courts to set aside action that is arbitrary, capricious, an abuse of discretion, or not in accordance with the law — while the Secretary did consider data, it clearly elicited the request from the DOJ AND most importantly, it was clear that the secretary based this decision on pretextual reasons because they had been planning the question for weeks and tried to justify it under several acts (4) The district court was warranted in remanding the case to the agency where the evidence tells a story that does not match the Secretary's explanation for his decision. - Concurring: The Secretary's decision was arbitrary and capricious regardless of being pretextual under the APA. - Dissenting: This is a policy question. IMPLICATIONS: Both the reasoning and actions of agencies need to fall within the statutory authority granted by Congress. This really would have been fine if he didn't lie. The Secretary acted arbitrarily and capriciously because of the pretextual reasons leading to his decision.

**J.W. Hampton Jr. & Co. v. United States, U.S. (1958)

FACTS: The Tariff Act of 1922, the first of its kind, delegated authority to the President to set and impose customs duties (tariff rates) on articles of imported merchandise, but only by 50% more than declared in statute. The President issued a proclamation under the Act to raise the import tax on barium dioxide, an item carried by J.W. Hampton Company. The Company argued that the Act's delegation of power was an unconstitutional delegation of Congress' taxing powers to the executive branch. ISSUES: Did Congress' delegation of taxing power to the Executive Branch violate the separation of powers principle (and the nondelegation doctrine to develop later)? HOLDINGS: No, constitutional. Congressional delegation of legislative authority is an implied power of Congress that is constitutional, so long as Congress provides an "intelligible principle" to guide the executive branch. REASONS: Congressional delegation of legislative authority is an implied power of Congress that is constitutional, so long as Congress provides an "intelligible principle" to guide the executive branch. The principle has to be clear enough for the agency to trace its actions back to those guidelines and goals. The clearer Congress is, the less problematic this is for delegation. (Ex. "Keep the air clean, EPA" may be too broad, so instead, "Reduce emissions by X% by 2030.") IMPLICATIONS: Established that Congress can delegate its legislative authority as long as it provides an "intelligible principle" to guide the executive branch. Broad interpretation of delegation.

**Biden v. Texas, U.S. (2022)

FACTS: The Trump administration rolled out the Migrant Protection Protocols (MPPs), or "remain in Mexico" program, where certain immigrants arriving at the border were returned to Mexico during their immigration proceedings. SCOTUS said the MPPs were enforceable. The Biden administration wanted to end the policy — opting to parole the migrants instead — expressed through an agency action with an explanatory memo, but Texas and Missouri challenged the effort, arguing it violated federal immigration law and the Administrative Procedure Act (APA). A federal court ordered the administration to implement the MPPs or initiate new agency action with a new memo. So, the Department of Homeland Security (DHS) issued a new agency action with a new memo, bolstering the reasons in the first memo. Lower courts looked at whether ending the MPPs was in accordance with federal immigration law, and whether the new action and memo had legal effect. ISSUES: Does the president's termination of MPP, as a foreign policy matter, violate the INA, and was the administration's second termination action a valid final agency action under the APA? HOLDINGS: The president's termination of the MPPs didn't violate federal immigration law, and the new memo constituted final agency action. REASONS: - Majority: The president's termination of the MPPs didn't violate federal immigration law, and the new memo constituted final agency action. Federal immigration law uses "may," indicating that the president has been given the discretion, not a required duty, to return certain immigrants to Mexico, so the presidents discretion to parole these immigrants instead is legal. Every president has interpreted in this way for decades. Even if this language was placing a duty on the president, Congress would never have intended to put such a burdensome action on the president's diplomatic relations with Mexico, as the president cannot unilaterally return these migrants to Mexico. Also, the DHS properly issues a new action, even if the new memo was just bolstering old reasons, especially as it marked the end of the decision-making process. - Dissenting: Congress has authority over immigration law. "Shall be detained" does not mean "may," so parole is not sufficient — the migrants have to be removed. IMPLICATIONS: Congress may not tie the hands of the president on foreign policy issues by overburdening him into nonconsensual unilateral actions, especially if they affect his diplomatic relations with a foreign country (Mexico).

**Schechter Poultry Corp. v. United States, U.S. (1935) (ND)

FACTS: Under the National Industrial Recovery Act, Congress delegated power to the President to regulate certain industries by developing codes of conduct for businesses in those industries. The president would likely allow codes not designed to promote monopolies or to oppress small businesses to continue. The Act did not articulate any standards at all for its legislative objective for the President to follow. When Schechter Poultry was indicted for violating a business code governing the poultry industry in New York City, it argued that the law was an unconstitutional violation of the non-delegation doctrine. ISSUES: Did Congress violate the nondelegation doctrine in delegating to the President power to regulate certain industries without providing any guiding standards? HOLDINGS: Unconstitutional delegation of power by Congress, violating the nondelegation doctrine under the separation of powers, because Congress cannot delegate its actual lawmaking authority to anyone, including the executive, which it did here. REASONS: The President cannot be allowed to have unbridled control to make whatever laws he believes to be necessary to achieve a certain goal — Congress, as required by the Constitution under the nondelegation doctrine, cannot delegate its lawmaking authority, especially as only Congress has a necessary and proper clause, not the president. After lawmaking, Congress can then guide the president on how to enforce moving forward. Here, Congress did not establish in this Act any rules or standards for the President to evaluate industrial activity, meaning Congress unconstitutionally deleted its lawmaking authority. IMPLICATIONS: Congress cannot delegate its lawmaking authority to the executive, or elsewhere. Narrowed interpretation of the president's power.

**United States v. Arthrex, Inc., U.S. (2021)

FACTS: Under the Patent Act, the secretary of commerce consults with the director of the U.S. Patent and Trademark Office (USPTO) to appoint administrative patent judges (APJs). Among other responsibilities, APJs decide questions of patentability upon review, a "hybrid proceeding" with "adjudicatory characteristics similar to court proceedings." Arthrex had a patent on a surgical device that they believed had been infringed on. Upon review, APJs issued a final written decision finding the device unpatentable. Arthrex appealed, arguing the appointment of APJs violates the Appointments Clause of the U.S. Constitution because they were appointed by the Secretary of Commerce, which requires that principal officers be appointed by the president with the advice and consent of the Senate, and that their decisions were not reviewable. ISSUES: Are APJs considered principal officers, or are they inferior officers who may be appointed by a department head? HOLDINGS: Under the original statutory scheme, APJs are considered principal officers because they render final decisions on behalf of the U.S. without review from their superiors... which is an unconstitutional violation of the Appointments Clause because they are appointed only by department heads and not the President and the Senate. APJs either need to be properly appointed as principal officers or become inferior officers — the superior of the APJs (directors of departments who are appointed under the Clause) must have the ability to review and reverse the decisions of APJs, and they must be able to remove APJs. REASONS: - Opinion of the Court: Under the original statutory scheme, APJs are considered principal officers because they render final decisions on behalf of the U.S. without review from their superiors... which is an unconstitutional violation of the Appointments Clause because they are appointed only by department heads and not the President and the Senate. APJs either need to be properly appointed as principal officers or become inferior officers — the superior of the APJs (directors of departments who are appointed under the Clause) must have the ability to review and reverse the decisions of APJs, and they must be able to remove APJs. Differentiated between principal and inferior officers of executive offices. - Dissenting: Congress has leeway under the Clause, especially as it does not describe the control superior officers should have over inferior officers, and the Clause defers to Congress' judgment. APJs reported to superiors, making them inferior officers. IMPLICATIONS: Differentiated between principal and inferior officers of executive offices.

**Test for Congress' Authorization of Power for Category 1 of Youngstown's Scope

In Clinton v. City of New York's dissent, they essentially compare limitations and powers in Article 1 (Congress) with what Congress has authorized the president to do (delegation) — which is in Category 1 of the Youngstown Scope. As a reminder, Category 1 says: In separation-of-powers cases between Congress and the president (1) The president acts pursuant to an expressed or implied authorization from Congress = president has Article 2 powers + delegated powers from Congress. ***The Test for Congress' Authorization of Power to the President: (1) Has Congress given the president the wrong kind of executive power? (2) Has Congress given the power to encroach upon Congress' own constitutionally reserved territory? (3) Has Congress given the president too much power, violating the nondelegation doctrine? - In Clinton v. City of New York, the dissent argued that Congress passed the test in giving authority to the president to cancel spending provisions in bills before approving them.

*Veto Power between Congress and the President

In the Constitution, to protect the separation of powers, is Article 1, Section 7, which lays out that a BILL must pass both houses of Congress (bicameralism) and then be approved or vetoed by the President (veto clause), and then sent back to Congress for a veto vote, overridden by a 2/3rds majority. But, within those (now) laws, Congress can add really whatever provisions it would like for a veto over the actions spelled out in the law. Typically, Congress is going to include some sort of qualified veto for the president — which can be overridden by Congress' specified vote in Congress — instead of an absolute veto for the president. Congress uses this tactic with executive agencies as well. - The Line Item Veto Act from Clinton v. City of New York was sort of an intersection of both of these, because it was a law that sort of interfered with the constitutional process for vetoing laws (that was the whole issue). So, both houses and the president passed the law, but then that law attempted to alter the passing of bills as laid out in the Constitution (as the Court said), which is why it was struck down as invalid.

Separation of Powers during the New Deal

Presidential powers were expanded to combat the Great Depression. This marked the rise of executive agencies, who make quasi-executive policies. Nicknamed the "imperial presidency." Congressional regulations in passing laws became far less specific. They set policy goals, but essentially gave the president the go-ahead to enforce however their executive agencies saw fit (for example, the EPA). The more general Congress was, the more power it gave executive agencies and the president. - Prevailing argument was the president can act a lot faster than Congress in times of emergency, but Youngstown picks up at this point.

**Principal versus inferior officers of executive offices

Principal Officers: (1) Make final decisions on behalf of the U.S. and (2) must be appointed under the Appointments Clause. Inferior Officers: (1) Their actions must be reviewable by a superior that is a principal officer and (2) and are appointed and can be removed by a principal officer. - Differentiated between these officers in executive offices in U.S. v. Arthrex.

Considerations of the Framers in Designing the 3 Branches

Separation of powers! - Saw the King in Britain had far too much power and constantly overstepped Parliament, so the Framers wanted an executive, but very worried about giving it so much power. They wanted to balance the socio-economic classes, and they wanted law-making and law-enforcing separate. They muddied the strict lines between the separate powers to create checks and balance. Debate over veto power, impeachment, one president or a plurality, should the executive be accountable to the legislature, etc. - When the judiciary was established later on, it had to grapple with this history.

*The Mazars Test — For courts to determine if a subpoena against the president is appropriate

Test for courts to use in determining if a subpoena against a president on matters regarding his capacity as a private citizen is appropriate and balanced under the separation of powers principle: (1) Whether the legislative request warrants the involvement of the president and if other sources can reasonably provide Congress the same information. (2) Whether the subpoena is no broader than is reasonably necessary to support the legislative objective. (3) Whether the nature of evidence that is requested by the subpoena would advance a valid legislative purpose. (4) Whether the subpoena burdens the president and may be a result from partisan politics. - Established in Trump v. Mazars, in which the Court remanded the case for lower courts to use this test.

Debate over Appointment & Removal Powers

The Presentment Clause requires that presidential appointees for executive officer positions have the advice and consent of the Senate. For removal, the President argues that, in order to have executive officers properly assist him in his duty of carrying out constitutionally required duties, he must be able to unilaterally remove appointed officers (employees won't obey the boss if the boss can't fire them). The Senate argues that if their advice and consent was required for appointment, then their consent is also required to remove appointed officers — which make take the form of a statute that simply puts restrictions on the president's removal powers. - Currently in law, there are restrictions on this only for specific offices.

*Sole Organ Doctrine

The President is the sole organ of the federal government in foreign policy, meaning the President has exclusive power over foreign policy and does not need Congress to delegate power to the executive branch in this area (or it can completely concurrently), whereas he would for domestic issues. - Articulated in U.S. v. Curtiss-Wright, where Congress did technically delegate power, but it was completely concurrent with the President's powers.

***Test for when Congress can limit the President's appointment & removal powers

The President may generally remove appointed executive officers at will under his Article II powers, but there are two exceptions: - (1) Congress can restrict the President's removal power if the appointed executive officer is a member of an agency that shares similar characteristics to the FTC from Humphrey's Executor — (a) experts, (b) nonpartisan, (c) staggered terms, (d) quasi-legislative and quasi-judicial functions, (e) no executive power. - (2) Congress may restrict the President's removal power of inferior officers with (a) limited duties and (b) no policymaking role, as established in Morrison v. Olson. - Established in Seila Law LLC v. CFPB, where the Court found that the director of the CFPB did not fall under either exemption, so the structure of the Bureau was an unconstitutional restriction on the President's appointment and removal powers.

***Scope of the President's Authority To Act Unilaterally in Separation-of-Powers Cases

The Scope of the President's Authority To Act Unilaterally into 3 categories of separation-of-powers cases between Congress and the president, starting with the most important: (1) The president acts pursuant to an expressed or implied authorization from Congress = president has Article 2 powers + delegated powers from Congress (2) The president acts in the absence of either a Congressional denial or grant of authority, the "zone of twilight" = president only has Article 2 powers, or (3) The President takes actions incompatible and in defiance of the expressed or implied will of Congress = president has Article 2 MINUS whatever Congress took away. - Note: If Congress ratifies the president's action after-the-fact, that moves the president's actions from category 2 to 1. - Defined in a concurring in Youngstown Sheet & Tube Co., v. Sawyer ["Steel Seizure Case"], where, under the 3rd category because Congress was expressively against the action, the action of the president was struck down because he does not have independent war powers in Article II.

Unitary Executive Theory

Unitary Executive Theory: The President possesses the power to control the entire federal executive branch. Rooted in Article 2, which vests "the executive power" in the President. - Mentioned in Morrison v. Olson.