Various assessments of Myers, Humphrey’s Executor, and Buckley.

• Analysis. Note that Myers, on the one hand, and Humphrey’s Executor and Wiener, on the other hand, point in opposite directions.

• Should there be a unitary executive? Should all branches of the government be subject to presidential control?

• Or is there sometimes a good reason to insulate certain officers from the president?

• After the decline of the non delegation doctrine, it is arguable that Humphrey’s Executor makes things worse: not only can’t agency rulemaking decisions (which have the force of law) be laid at the feet of Congress; they can’t be laid at the feet of the President, either. Humphrey’s Executor creates a “headless fourth branch” of government subject to the control of none of the three constitutionally recognized branches. The result is unchecked bureaucratic power.

• Together with commerce power, does this mean that the U.S. is run by an oligarchy that is immune to democratic control? Even if the answer is yes, should we care if the job of regulation is being performed well? If job of regulation is being done badly, can Congress do anything about that?

• There is no constitutional basis for administrative agencies exercising power without presidential supervision. Humphrey’s Executor should be overruled.

• Humphrey’s Executor was a necessary response to the growth of administrative agencies and the grant of legislative and judicial functions to those agencies.

• If those powers were to be exercised by the President, system of separation of powers would be skewed in favor of executive branch. Thus, this case was a necessary quid pro quo for downfall of nondelegation doctrine.

• Devices such as legislative veto and congressional participation in appointment of administrative officers should therefore be upheld as modern efforts to maintain constitutional balance in context of the administrative state.

• Myers and Buckley are based on a formalistic effort to catalogue those functions that are necessarily “executive” in character.

• Any such categorization is bound to be arbitrary.

• Moreover, Congress is under no obligation to create subordinate bodies in the first place, so it follows that when Congress chooses to create these bodies, it is under no obligation to make their members subject to presidential control.

Bowsher V. Synar - Good-bye Gramm-Rudman

• Burger 1986. This case invalidated the Gramm-Rudman Act because the Act violates the separation of powers. Congress may not reserve to itself the power to remove an executive officer for cause, at least where the definition of “cause” is fairly broad.

• Facts. The Gramm-Rudman Act, Congress’ attempt to reduce federal budget deficits, set a “maximum deficit amount” for each of the fiscal years 1986-1991. The size of the maximum allowable deficit was reduced each year, until it was to become zero in 1991. In any year in which the deficit exceeded the maximum deficit amount, the Act required across-the-board cuts in federal spending to meet the targeted amount. These cuts were “automatic” in the sense that they were essentially pro-rata (half to defense programs and the other half to non-defense programs).

• Role of Comptroller-General. The Act gave a key role to the Comptroller General of the U.S. in carrying out the automatic cut provisions. The Comptroller was to review budget estimates given to him by two federal agencies, and then submit to the President a report stating on a program-by-program basis how much needed to be cut. The President was then required to issue an order mandating the reductions specified by the Comptroller. Congress could then, by special legislation, reduce spending to eliminate the need for some or all of the cuts; if it did not do so, the cuts called for in the presidential order were to be automatically carried out.

• Right to Remove Comptroller. By separate, much older, legislation, Congress reserved to itself the right to remove the Comptroller General from office for five specified reasons (“permanent disability,” “inefficiency,” “neglect of duty,” “malfeasance,” or “a felony or conduct involving moral turpitude.”) In the 80-odd years since the post of Comptroller General was established, Congress had never exercised, or even made a serious move to exercise, this removal power.

• Statute struck down. By a 7-2 vote, SCt struck down the automatic-reduction provisions of the Act. In doing so, the SCt applied the following reasoning:

• Act uses the Comptroller’s “executive powers;”

• Executive powers may not be vested by Congress in itself or its agents, because Congress is limited to legislative rather than executive functions.

• Because Congress can remove the Comptroller, he is an agent of Congress;

• Therefore, the Comptroller may not constitutionally exercise the executive powers given to him in the Act, and

• The Act’s automatic budget reduction mechanism, which is based on the Comptroller’s exercise of his executive powers, must be invalidated.

• Nature of Removal Power. The most novel aspect of majority’s reasoning is its assertion that the retention by Congress of the right to remove an executive officer for certain specified types of cause converts that officer into an agent of Congress. The majority stressed that several of the types of cause (“inefficiency,” “neglect of duty,” and “malfeasance”) are “very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.” Also, it was not clear to the majority that there could be judicial review of any removal. Furthermore, there was evidence that both Congress and the Comptroller General himself view him as being “an office of the Legislative Branch.”

• Concurrence - Stevens, Marshall. Agreed with majority that Comptroller was an agent of Congress. But they disagreed that it was Congress’ right to remove him that made him such – rather, it was the fact that the bulk of his duties are directed at, and for the benefit of, Congress instead of the executive branch.

• The concurring justices sharply disagreed with the majority’s view that the powers exercised by the Comptroller under the Act are executive. They believed that these powers were “legislative,” because they involved the making of broad policy determinations. Consequently, just as Congress could not delegate part of its legislative authority to the Attorney General for deportation decisions (as SCt held in Chadha), so it could not delegate these powers to the Comptroller General. In particular, these legislative functions could only be carried out via the passage by both Houses of a law that is then signed by the President (bicameral and presentment requirements of USC).

• Dissent - White. White argued the majority opinion was too formalistic and ignored the realities of the problem that Congress is trying to address.

• The SCt’s technical argument has nothing to do with the concerns that underlie the separation of powers. The constitutional test should be “whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law.”

• No such threat is presented here: White contended that Congress’ retention of the right to remove the Comptroller for specified causes did not convert him into an agent of Congress. “Common sense indicates that the existence of the removal provision poses no such threat to the principle of separation of powers.” So the statute should be upheld.

• White’s reasoning here was much like that of his dissent in Chadha. It avoids the vices of formalism, but it id not clear whether White has any theory of separation of powers that could predictably determine whether, in any given case, there has been a violation.