Freytag V. Commissioner of Internal Revenue

• Blackmun 1991. Held that the appointment of special trial judges by the Tax Court’s chief judge did not violate the appointments clause. The special tax judges had sufficient discretion/importance to be “inferior officers” to whom the appointments clause applied. Although the Tax Court was not an Article III court, its exclusively judicial role qualified it as a “Court of Law” within the meaning of the appointments clause

Weiss V. United States

• Rehnquist 1994. Held it was not unconstitutional for the Judge Advocate General to appoint military judges to serve on special and general courts martial. Although the officers in question received judicial assignments from the Judge Advocate General, rather than the President, they had already been appointed as commissioned officers by the President.

Edmond V. United States

• 1997. SCt upheld authority of Transportation Secretary to appoint civilian members of Coast Guard Court of Appeals. “Inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice/consent of Senate. SCt held that civilian judges on Coast Guard Court of Appeals were inferior officers who could be appointed by head of department because they were supervised by JAG and by Court of Appeals for Armed Forces.

Justice Scalia’s Bowsher and Mistretta dissents

• In Bowsher and Mistretta, Scalia objects to results reached by SCt because they permit Congress to establish arrangements that minimize political accountability.

• Is Scalia’s position consistent with his willingness to use courts to police separation of powers decisions made by politically accountable branches?

• Is Scalia correct in asserting that SCt’s balancing approach fails to provide a clear standard for what sorts of congressional limitations on executive authority are constitutionally permissible?

• Is there any answer to Scalia’s argument that USC vests entire executive power in the President, and that SCt’s balancing approach is therefore profoundly mistaken?

Congressional control of administrative agencies after Chadha and Bowsher

• Buckley court upheld FEC Act insofar as powers that it delegated to FEC were “essentially of an investigative and informative nature, falling in the same general category as those which Congress might delegate to its own committees.”

• Does this holding survive Chadha?

• Would this opinion survive Stevens’ concurring opinion in Bowsher?

• Consider possibility that centralization of executive power actually weakens the presidency. If this is the case, then in order to strengthen the presidency, perhaps there should be selected cutbacks in direct presidential oversight of agencies, and select creation of commissions that operate with less direct presidential control.

Metropolitan Washington Airports Authority

• Stevens 1991. This case illustrated the Presentment Clause (giving President opportunity to veto any bill) and the bicameral requirement (whereby both Houses must pass a bill before it can become law). SCt held that if a review board (or other oversight board) staffed by Members of Congress is carrying out what are properly viewed as legislative functions, the board’s own actions must be approved by both Houses and presented to the President for his veto.

• Facts. Congress passed a statute saying that Dulles and National Airports would be transferred from the federal government to the Metropolitan Washington Airports Authority, provided that the Authority set up a Board of Review composed of nine Members of Congress. The Board of Review would have veto power over any decisions made by the Authority. Challengers to the Act argued that if the Board of Review were set up with that composition, Members of Congress would in effect be administering the airports, a function entrusted to the Executive Branch.

• Board struck down. SCt agreed that the creation of the Board staffed by Members of Congress would violate separation of powers principles. SCt did not decide which of two constitutional violations would occur, but did decide that one or the other would definitely occur:

• Improper lawmaking. If the Board’s actions were viewed as legislative in nature, the Congress was violating the presentment and bicameralism requirements, since the congressionally-staffed Board would be making individual decisions that would that would not be approved by each House or presented to the President for his possible veto. The Board action in that instance would be similar to the legislative veto invalidated in Chadha.

• Improper execution of laws. Alternatively, the Board might be viewed as giving the Board the power to execute or administer the laws. In that event, the Board would be in effect an arm of Congress performing Executive functions. This would violate the separation of powers principle that only the Executive Branch, not Congress, may carry out the laws. (Bowhser established this rule.)

• Dissent - White. Board is a creature of state law, and separation of powers does not apply to state laws. More generally, the SCt shouldn’t worry so much about legislative encroachment. These days, the executive is the more dangerous branch of government.

• Critique of Metropolitan Washington Airports Authority

• Assuming that Board of Review was exercising executive authority, what did Court ignore relatively clear requirements of appointments and ineligibility clauses in favor of more amorphous, arguably nontextual Bowsher principle (unconstitutional because Board of Review was an “agent of Congress”)? This contrasts with Burger’s textualism in Chadha.

• Assuming Board of Review was exercising legislative authority, then why was it constitutional for Federal Aviation Administration to run the airport prior to the transfer?