Executive Power
Congress has given the Secretary of State the power to appoint ambassadors and deputy ambassadors to foreign countries. Per this power, Marci Bash, the Secretary of State, appointed Whitney Frye to the position of ambassador to South Africa and appointed Ruby Red to be deputy ambassador. Are these appointments constitutional?
Principal officers must be appointed by the president and confirmed by the senate. Appointment of inferior officer is ok Class 11/8
Assume for the purposes of this question only that the Bash appointment of Ms. Red was constitutional. President T was very disappointed in the Red appointment because he considered her "potentially disloyal." He ordered Bash to fire Red. When Bash refused to do so, President T fired Ms. Bash. Ms. Bash believes the firing is unconstitutional. Is she correct?
She is a cabinet member so this is constitutional Class 11/8
What clause of the Constitution does the line-item veto violate?
The Presentment Clause, Article I, §7, cl. 2, which states that after a bill is approved by both Houses it shall be presented to the President; "if he approve he shall sign it, but if not he shall return it." The line-item veto violates this procedure because the veto occurs after the bill is signed into law and the cancellation applies to only part of the bill. The Presentment Clause requires veto of the entire bill. Casebook Connect - The rise of the administrative state
In response to an order from the U.S. District Court for the Middle District of North Carolina to produce confidential communications, President T invoked the claim of executive privilege. What rule of law is most likely to be applicable? A. In the absence of an asserted need to protect military, diplomatic, or national security secrets, the privilege is not absolute. B. The presidential privilege is always subordinate to the need for evidence in a criminal trial. C. There is no presidential privilege. D. The absolute immunity doctrine protects the President from having to release information in this context.
A. In the absence of an asserted need to protect military, diplomatic, or national security secrets, the privilege is not absolute. Class 11/8
Which of the following is not one of the President's powers under Article II? A. The power to rescind treaties. B. Veto power (Article I, Section 7) C. The power to serve as Commander-in-Chief (Article II, Section 2) D. Pardon power (federal crimes only) (Article II, Section 2)
A. The power to rescind treaties. Class 11/8
Congress passed a statute that prohibited the collection of foreign intelligence without a warrant. The president of the United States challenged the statute, arguing that Congress could not place restrictions on the president's conduct in matters implicating war and national security. Which of the following statements most accurately represents Congress's power to place restrictions on the president's authority over issues involving war and national security? A. The president may not disregard congressional limitations on the president's authority over issues involving war and national security if Congress placed the limitations in proper exercise of its own war powers. B. The president has ultimate authority over all national-security matters as Commander-in-Chief, and Congress cannot place limitations upon this authority. C. If a presidential action is necessitated by war or national security, then Congress has the power only to grant the federal courts the ability to judicially review the president's action. D. Congress may strip the president of any of his war powers through a properly passed statute.
A. The president may not disregard congressional limitations on the president's authority over issues involving war and national security if Congress placed the limitations in proper exercise of its own war powers. Quimbee - Executive Power Over Foreign Affairs
The Federal Trade Commission (FTC) was an independent agency in the executive branch that was created by the Federal Trade Commission Act. The FTC was headed by a board of commissioners and tasked with promoting consumer protection issues. The president of the United States fired a commissioner of the FTC. Although the commissioner passed away shortly afterwards, the executor of the commissioner's estate sued the United States for back pay, claiming that the firing was unlawful. The Federal Trade Commission Act stated that an FTC commissioner could be removed only for wrongdoing, but the act did not define wrongdoing. The executor alleged that the president had fired the commissioner only because the president did not like the commissioner and without any showing of wrongdoing, regardless of the definition. The federal government argued that the commissioner's estate was not entitled to back pay because, even if the president's act of firing the commissioner violated the act, the act itself was unconstitutional. Specifically, the federal government claimed that the act's removal restriction improperly violated the president's authority under the United States Constitution to be able to remove executive officials at will. In response, the executor claimed that Congress did have the constitutional authority to put this type of removal restriction in the act. Is it likely that the act's removal restriction was constitutional? A. Yes, because Congress has the constitutional authority to provide FTC commissioners with some protection from presidential removal. B. Yes, because the restriction did not specifically define what constituted wrongdoing, leaving the president of the United States with sufficient discretion for the restriction to be constitutional. C. No, because the president of the United States may remove principal executive branch officers at will. D. No, because the president of the United States has the power to take care that consumer-protection laws be faithfully executed, which includes power over the FTC.
A. Yes, because Congress has the constitutional authority to provide FTC commissioners with some protection from presidential removal. Quimbee - Executive Power Over Domestic Affairs
Congress passed the Ethics in Government Act. Under the act, upon request of the United States attorney general, a court called the Special Division could appoint an independent counsel to investigate and prosecute high-ranking government officials for violations of federal criminal laws. Once an independent counsel was appointed, the act gave the U.S. attorney general supervision over the independent counsel, including the exclusive power to remove that independent counsel for good cause. An independent counsel was appointed to investigate the United States solicitor general. The U.S. solicitor general argued that the appointment of the independent counsel by the Special Division court was unconstitutional because it violated the Appointments Clause in the United States Constitution. Is it likely that the appointment of the independent counsel was constitutional? A. Yes, because the independent counsel was being supervised by a higher-level executive-branch official who was not the president of the United States. B. Yes, because the president of the United States could still pardon anyone prosecuted by the independent counsel. C. No, because the independent counsel was under the supervision of the U.S. Attorney General and not the Special Division court that appointed the independent counsel. D. No, because the independent counsel was an executive-branch officer who must be appointed by the president of the United States.
A. Yes, because the independent counsel was being supervised by a higher-level executive-branch official who was not the president of the United States. Quimbee - Executive Power Over Domestic Affairs
The United States was engaged in a military conflict with insurgents in a foreign country. As hostilities increased, the president, citing the urgent need for more troops, unilaterally appropriated federal funds to support additional military operations in that country. Congress had made no formal declaration of war. Was the president's unilateral approval of funding constitutional? A. Yes, because the president has the power to appropriate military funds as commander in chief. B. Yes, because the president has the power to appropriate military funds based on a determination that the appropriation is in the national interest. C. No, because only Congress has the power to "raise and support" an army. D. No, because the president can only appropriate funds for the military if Congress has declared war.
C. No, because only Congress has the power to "raise and support" an army. Quimbee - Executive Power Over Foreign Affairs
The United States Coast Guard Court of Criminal Appeals was an intermediate military court. The United States secretary of transportation appointed judges to this intermediate court and supervised them, although the court's decisions were subject to further review by the United States Court of Appeals for the Armed Forces. A servicemember in the U.S. Coast Guard was convicted of a crime by a court martial and the servicemember's conviction was affirmed by the U.S. Coast Guard Court of Criminal Appeals. The servicemember appealed the intermediate court's affirmation on the grounds that the judges had not been validly appointed to the court. Specifically, the servicemember argued that the judges' appointments violated the Appointments Clause of the United States Constitution because the judges were principal officers under the Appointments Clause that could be appointed only by the president of the United States, not the U.S. secretary of transportation. Did the U.S. secretary of transportation's act of appointing the judges to the U.S. Coast Guard Court of Criminal Appeals violate the Appointments Clause of the U.S. Constitution? A. Yes, because the president of the United States had the sole authority to appoint executive-branch officers. B. Yes, because only the president of the United States could appoint federal judges. C. No, because the judges were under the supervision of the secretary of transportation. D. No, because Congress had the sole authority over the military (and all types of military officials, judges, and courts), which eliminated any presidential authority under the Appointments Clause to appoint these military judges.
C. No, because the judges were under the supervision of the secretary of transportation. Quimbee - Executive Power Over Domestic Affairs
After a period of civil unrest, the western portion of an existing country seceded and formed its own, new country. Although the prior country was recognized by the United States as a sovereign entity, the newly formed western country was not. A son was born to United States citizens living in the newly formed western country. The son's mother requested a passport and report of the birth abroad for her son, listing his place of birth as the newly formed country. The request was denied by the United States State Department pursuant to an executive-branch policy. Under this policy, the president and the executive branch had declined to recognize this new entity as an independent sovereign country. The mother filed suit in federal district court, arguing that a recent congressional act had recognized the newly formed country and permitted citizens born in that new country to list it as their place of birth. The U.S. State Department argued that the congressional act recognizing the newly formed country was unconstitutional. Was the congressional act recognizing the newly formed country as an independent country constitutional? A. Yes, because Congress has exclusive power over citizenship issues. B. Yes, because Congress has exclusive powers over foreign affairs. C. No, because the president of the United States and the executive branch have the exclusive authority to recognize a foreign sovereign. D. No, because the United States Constitution expressly grants the president of the United States and the executive branch the exclusive authority to supervise United States foreign policy.
C. No, because the president of the United States and the executive branch have the exclusive authority to recognize a foreign sovereign. Quimbee - Executive Power Over Foreign Affairs
A woman was convicted of several financial crimes and ordered to pay a $500,000 fine. As part of the woman's conviction, a federal district court issued an injunction that banned her from taking part in any United States financial market. A year later, the woman was caught buying and selling corn oil on the United States Commodities Exchange. The woman was tried and found guilty of criminal contempt of court. The federal district court sentenced the woman to five years in prison. The president of the United States, who was a close friend and business partner of the woman, issued a pardon that reduced the woman's sentence to the payment of a $100 fine. The president admitted that the pardon was granted based solely on his personal relationship with the woman. Was the president's pardon constitutional? A. No, because the pardon overruled a decision made by an Article III court. B. No, because the president of the United States cannot pardon someone based solely on a personal relationship. C. Yes, because the pardon power held by the president of the United States is nearly absolute. D. Yes, because the woman was punished for failing to follow a judicial order, not for actually committing a federal crime.
C. Yes, because the pardon power held by the president of the United States is nearly absolute. Quimbee - Executive Power Over Domestic Affairs
After several months of hearings, Congress finally passed the Internet Communications Act (ICA). The law supplanted Congress's earlier attempts to regulate the Internet and created provisions that specifically targeted disinformation in order to "create a better-informed citizenry by removing and eliminating demonstrably false information from the public sphere." The ICA empowered the Federal Communications Commission (FCC) with the authority to pass regulations, fine and punish any website or Internet provider that repeatedly trafficked in disseminating information the FCC determined had no basis in fact. Philip operates an Internet website which does not engage in such practices, but he believes the law infringes upon the First Amendment rights to free speech. He believes it is unconstitutional because it awarded the FCC the power to pass regulations, violating the separation of powers doctrine. Is Philip correct?
Congress is giving power to an administrative agency = Non-Delegation Doctrine Next consideration, does it follow this intelligible principle test - Is it clear what the general policy is in place Defining boundaries that agency can operate If the answer is yes - even if it's a wide boundary - then it's ok. Regulation is the only part that's an issue....fine and punish is executive anyways, it's about promulgating the rules. Class 10/27
Congress passed the Immigrant Students Act, which banned discrimination against immigrants from foreign countries. The act required the Department of Health, Education, and Welfare (an executive-branch department) to enforce the act with respect to schools. The act gave the department specific tools to use to enforce the act: (1) terminating federal financial assistance to noncompliant schools or (2) taking any other means authorized by law, provided that the department had given the noncompliant school an opportunity to voluntarily come into compliance. Certain students sued the department, alleging that the department was not terminating federal financial assistance to noncompliant schools or taking any other means authorized by law to ensure compliance with the act. Specifically, the students alleged that the department had opted to merely encourage voluntary compliance without any threat of a penalty. The department claimed that its enforcement of the act was a matter of executive-branch discretion. Did the department have the discretion to rely on voluntary compliance instead of using the act's enforcement measures? A. Yes, because administrative agencies have complete, independent discretion over to how to implement and enforce statutes. B. Yes, because administrative agencies are under the exclusive control of the president of the United States, and the president has complete discretion over how to implement and enforce statutes. C. No, because Congress has complete discretion over how to implement and enforce statutes. D. No, because the act had an express enforcement mandate.
D. No, because the act had an express enforcement mandate. Quimbee - Executive Power Over Domestic Affairs
In response to a terrorist attack, Congress passed an Authorization for the Use of Military Force. This congressional act declared war on a specific terrorist group that had orchestrated the attack and authorized the president of the United States to use all appropriate and necessary force against anyone suspected of engaging in terrorist activity on behalf of the group. After that, the president of the United States ordered U.S. military forces into a country that was believed to be connected to the terrorists who had launched the attack. While operating under the president's orders, the United States military forces seized a U.S. citizen on suspicion that the citizen was actively working for the terrorists. Still operating under the president's orders, the seized U.S. citizen was then classified as an enemy combatant and held at a federal prison in the United States. The U.S. citizen argued that the president lacked the authority to detain him. Did the president have the constitutional authority to detain the man as an enemy combatant? A. No, because detaining a combatant to prevent the combatant's return to the battlefield is a fundamental incident of waging war and Congress may not delegate its exclusive constitutional authority to wage war to the president. B. No, because detaining a combatant to prevent the combatant's return to the battlefield is a fundamental incident of waging war and Congress did not expressly delegate its authority to detain enemy combatants to the president. C. Yes, because the text of Article II of the U.S. Constitution specifically gives the president the authority. D. Yes, because Congress authorized the president to use all appropriate and necessary force in the war efforts.
D. Yes, because Congress authorized the president to use all appropriate and necessary force in the war efforts. Quimbee - Executive Power Over Foreign Affairs
Pirate ships not connected to any foreign nation were making repeated attacks on United States military and cargo ships near a United States port. In response, while Congress was not in session, the president of the United States issued an executive order commanding the United States Navy to set up a naval blockade in that area. The order stated that if a vessel approached or attempted to leave the blockaded area, it would get a warning. If the vessel continued to ignore instructions given by the U.S. Navy ships operating the blockade, then the vessel would be seized by the U.S. Navy. A vessel was seized by the U.S. Navy as a result of the blockade. The vessel's owner brought an action challenging the executive order's legality. Is it likely that the president's executive order was lawful? A. No, because only Congress has the power to declare war on or otherwise use military force against a nation or other group of people. B. No, because the pirates were not representatives of any particular foreign nation. C. Yes, because the president of the United States has absolute authority over the military as Commander-in-Chief. D. Yes, because the president of the United States has limited authority over the military that includes the inherent constitutional authority to repel sudden attacks.
D. Yes, because the president of the United States has limited authority over the military that includes the inherent constitutional authority to repel sudden attacks. Quimbee - Executive Power Over Foreign Affairs
The novel coronavirus resulted in more than 20 million lost jobs in the United States in a six-month period. Congress knew it needed to get more financial assistance to its constituents, so it began negotiating a relief package. Unable to agree on a large-scale package, Congress began debating a law that would raise the minimum wage from $7.25 per hour to $11 per hour. The debate was fierce, but in the end, the Senate and the House both voted down different versions of the proposal, believing it would put too much strain on employers. President T, angry at what the votes meant for his election prospects, signed an executive order mandating that all administrative agencies pay federal contract employees $11.50 per hour, effective immediately. Critics said the executive order was "clearly unconstitutional." Under Justice Jackson's analysis of presidential authority in Youngstown Sheet & Tube v. Sawyer, would President T's executive order be constitutional?
He's not directing the states to do anything, he's directing the administrative agencies - so not a separation of powers issue Power to expend money = Congress (Article 1) Issue is whether EO in and of itself is Constitutional. We know there is a problem because it requires spending of $ Jackson's Analysis: 3 part test. (On an essay, explain the framework of all 3, then apply the one that you think exists under these facts). Here, contrary to Congress. Minimal power, unconstitutional. Class 10/27
In 2001, Congress passed the Authorization to Use Military Force (AUMF) in allowing the President greater latitude to fight the War on Terror. Section 12(a) of the AUMF authorized the President to apprehend, restrain, secure and remove all natives from, or citizens of, nations considered potentially hostile to the United States, unless these people have been naturalized or are American citizens. Kevin X, who was born in Houston, TX, went to Iran after graduating college and became radicalized. He returned to the states and began giving fiery speeches that federal agents believed had the potential to encourage violent acts. President T ordered agents to arrest Kevin under the AUMF. Attorneys for Kevin believe the President lacked the constitutional authority to do so. How would you analyze this question using Justice Jackson's concurring opinion in Youngstown Sheet & Tube v. Sawyer?
Here, Section 12A gives the president the ability to ...unless they are US citizens. So, he has arrested someone who is a US citizen. This mean that on its face, it's in contravention of what Congress desires. Leads you to it being unconstitutional Class 11/8
After hearing of her sizable donation to one of his political action committees, President T now wants to nominate Alicia as his Ambassador to Sweden. Alicia has never been to Sweden, nor does she speak the language. Is her nomination Constitutional?
Yes, under the Constitution the President has the power to appoint judges, ambassadors, public ministers, counsels. This is one of the President's express authorities. Doesn't matter who he nominates, he has the ability to do that. But then these nominations go to the senate for approval - but the question was whether his nomination was Constitutional. Class - 8/26
What is a legislative veto?
a. A legislative veto occurs when Congress delegates power to an executive agency or the President, but retains the right to veto actions of the agency or the President. A legislative veto undermines the executive right to veto, and thus violates the Separation of Powers doctrine. Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983). EXAMPLE: Congress grants the President the power to promulgate regulations concerning immigration that are to have the force of law. However, Congress requires the President to give it the proposed regulations before they take effect, so Congress can approve or disapprove them. This is an impermissible legislative veto. Casebook Connect - The rise of the administrative state
Concerned that the "advice" part of the Senate's advice and consent power has atrophied, Congress passes a law requiring the President to notify the Senate of all vacancies requiring Senate confirmation and prohibiting the President from naming any person to one of those vacancies until the President, or the President's representative, has consulted with the Senate majority leader and the Chair of the Senate committee with jurisdiction over the nominee's department. When the President acts to fill a recent vacancy on the Supreme Court without the consultation required by the Act, Senators sue, seeking an injunction requiring presidential compliance. A reviewing court would probably do what? a. Deny the injunction, because Congress has usurped the President's constitutional power to appoint, granted in Article II, § 2 b. Grant the injunction, because the President is acting contrary to the express wishes of Congress. c. Grant the injunction, because the Senate has the power to offer "advice and consent" to presidential nominees. d. Deny the injunction, if the Senate has acquiesced over time to presidential appointments without consultation
a. Deny the injunction, because Congress has usurped the President's constitutional power to appoint, granted in Article II, § 2 When the President bucks Congress, and his power is at its lowest ebb, he can rely only on his independent power minus constitutional powers of Congress over the matter. Clearly the President has the power to nominate various officials. U.S. Const., art. II, § 2. The Senate has the power to offer "advice and consent" to such nominees, but Congress as a whole doesn't have any role to play in appointments, which is a presidential prerogative Casebook Connect - Federal Executive Power
Congress recently passed an Emergency Economic Stabilization Act that permits the President, through the Secretary of the Treasury, to offer loan guarantees to businesses facing shortfalls due to economic distress. The Act also instructs the President to suspend such guarantees if, in his judgment, the executives of the business are possessed of "unreasonable" salary and benefits packages relative to other employees and executives in the industry. When the President suspends loan guarantees to BigCorp because its executives refused to relinquish their corporate jet, the BigCorp executives sued, claiming that the provision of the Act delegating power to the President to suspend the guarantees violated Article I, § 7. Which of the following statements is true about the Act? This is testing the non-delegation doctrine a. The Act is likely constitutional, because Congress may delegate power to the President to exercise according to statutory conditions. b. The Act is likely constitutional, because the Act was passed by both houses and sent to the President for his signature or veto. c. The Act is likely unconstitutional, because the President's decision to suspend the guarantees was legislative in nature and required passage by both houses of Congress. d. The Act is likely unconstitutional, because the President's action negates a policy choice made by Congress when it passed the Act.
a. The Act is likely constitutional, because Congress may delegate power to the President to exercise according to statutory conditions. Casebook Connect - The rise of the administrative state
The President has entered into an executive agreement with the Government of Venelivia, settling claims between that government and several companies whose assets were seized by Venelivia when their operations were nationalized. As part of the agreement, the President agrees to order the transfer of property held in U.S. banks, which had previously been frozen. The State of Ames, in which some Venelivian property is held, refuses, citing a state law prohibiting the transfer of foreign assets to countries who seize property of Ames corporations without paying fair market value. (One of the businesses nationalized by the Venelivian government was based in Ames.) The Ames Attorney General sues to prevent the transfer of assets in federal court, alleging that the executive agreement is unconstitutional. What should the judge do? a. Dismiss the case, because the President has broad powers in foreign affairs matters. b. Dismiss the case, because the President may enter into agreements settling foreign claims that trump state law. c. Enjoin the transfer because claim settlement must occur through a treaty approved by two thirds of the Senate. d. Enjoin the transfer unless the President was authorized by statute to settle the claims with Venelivia.
b. Dismiss the case, because the President may enter into agreements settling foreign claims that trump state law. Casebook Connect - The rise of the administrative state
Frustrated by a lack of cooperation from the Senate, which seems intent on denying him most of his nominees for important cabinet and judicial posts by not holding hearings and not scheduling votes on them, the President has decided to take matters into his own hands. Claiming authority under his constitutional duty to "take care that the laws be faithfully executed," the President begins handing out "temporary" commissions to scores of persons whose offices require the Senate to advise and consent to their nominations. The President had considered making numerous "recess appointments" under the authority given to him in Article II, § 2, clause 3, but decided against it because (1) he would have to wait until the Senate went into recess, which it is unlikely to do in anticipation of such a move on the part of the President; and (2) he is afraid that if the Senate does recess and he makes a massive number of recess appointments, the Senate will retaliate by not considering any of the President's pending legislation. There is an act on the books (the Vacancies Act) that limits the tenure of temporary appointees who have not been confirmed by the Senate. The President, however, makes it clear that his acting appointees will occupy their positions in excess of the limit set in the Vacancies Act, and will remain until the Senate takes action on the nominees he has sent to it. If challenged, what should a reviewing court do? a. Uphold his appointments, because the Senate has frustrated the President's ability to ensure the laws are faithfully executed, and because the President has an independent power to appoint. b. Invalidate his appointments, because he is acting contrary to the express will of Congress, expressed in the Vacancies Act. c. Invalidate his appointments, because he is acting contrary to the Vacancies Act and because the Senate must otherwise confirm all nominees. d. Uphold his appointments, because the appointments are similar to the recess appointments the Constitution empowers the President to make.
c. Invalidate his appointments, because he is acting contrary to the Vacancies Act and because the Senate must otherwise confirm all nominees. Acting contrary to the will of Congress doesn't automatically result in the presidential action's invalidation. Rather, a reviewing Court has to consider the President's independent power minus that power Congress possesses over the same subject matter. Here, the President is not only acting contrary to the Vacancies Act, but his unilateral appointments violate Article II's assignment of a confirmation role to the Senate as well. Casebook Connect - Federal Executive Power
As part of the United States' settlement of outstanding claims with Venelivia, the President enters into another executive agreement establishing an arbitral panel for the resolution of future claims between American citizens and the Venelivian government. The agreement recites that it is the policy of the U.S. government that all claims be settled through the panel, as opposed to ordinary litigation in state or federal courts. After Venelivia nationalizes BigOilCo, a corporation with its principal place of business in the State of Ames, BigOilCo files suit, taking advantage of a new Ames statute enabling citizens who have property nationalized overseas to receive treble damages if they can prove they received less than fair market value for their property. The United States intervenes, arguing that the executive agreement preempts the Ames law as applied to disputes with Venelivia. Which of the following statements is true? a. The executive agreement does not preempt the Ames statute because it does not explicitly preempt state law. b. The executive agreement cannot preempt state law, because it is not authorized by Congress. c. The statement of policy is sufficient to preempt state law. d. All state laws contrary to foreign policy articulated by the executive branch are preempted.
c. The statement of policy is sufficient to preempt state law. Medellin - not all state laws are preempted Casebook Connect - The rise of the administrative state
Concerned about growing violence among drug gangs in Mexico, the United States and the government of Mexico enter into a series of executive agreements intended to reduce violence along the border, including measures to prevent guns from making their way from the United States across the border into Mexico. In connection with the executive agreement, the President sends a memorandum to the Governor of Texas ordering him to confiscate weapons in certain border towns where violence has escalated. Those who are lawfully possessing arms will have the opportunity to demonstrate that and will have their weapons returned. Assume for purposes of this question that Texas generally permits law-abiding citizens to possess guns and even carry them concealed on their person if they have a license to do so, which is available as a matter of right to citizens 21 or older who have passed a safety course and have not been convicted of certain violent crimes. The Governor sues to prevent enforcement of this executive policy. What should a reviewing court do? a. Side with the President because his actions, taken in conjunction with an executive agreement, preempt contrary state law. b. Side with the President because considerations of federalism do not restrain executive branch action in foreign affairs. c. Side with the Governor because the President's actions were not ratified by Congress. d. Side with the Governor because the policy embodied in the memorandum cannot preempt state law.
d. Side with the Governor because the policy embodied in the memorandum cannot preempt state law. Casebook Connect - The rise of the administrative state
Earmarks" are appropriations that members of Congress insert into the annual budget directing dollars into their district for designated uses. Earmarks can take different forms, including so-called unrequested spending, whereby Congress funds a program at a level higher than that requested in the President's budget. As part of earmark reform, Congress has passed the Earmark Accountability Reform (EAR) Act. Henceforth, the President may reduce unrequested spending to the level originally requested by the President, if, in the President's opinion, the additional spending is "wasteful" or "unnecessary" and that finding is reported to Congress. Unless Congress restores the earmarks by majority vote in a resolution that is sent to the President for a veto or signature, the earmarks do not become law. Ames City, the capital of the State of Ames, is due to receive some unrequested spending for infrastructure development, but the President deems that extra money "wasteful" and so indicates in a message to Congress. A resolution restoring the money fails and the Mayor of Ames City sues, claiming that the EAR Act is unconstitutional. How would a reviewing court likely find? a. The Act is constitutional, because it simply gives the President the power to decline to spend appropriated funds. b. The Act is constitutional because it complies with Article I, § 7's bicamerality and presentment requirements. c. The Act is unconstitutional because it enables the President to exercise delegated power. d. The Act is unconstitutional because it enables the President to substitute his policy judgment for that of Congress.
d. The Act is unconstitutional because it enables the President to substitute his policy judgment for that of Congress. Casebook Connect - The rise of the administrative state