• Prof. Lamdan

Class 25 - 28 (Separation of Powers)

Updated: Nov 21, 2019

This post reflects on our final lessons for the semester


We finish out the semester discussing administrative power in relation to Congress and the President. (In our Judicial Review section of the course, we discussed the limits on judicial interventions in agency decisionmaking.)


Separation of powers issues are a hot topic in the current administration. Here are some examples from current events that bring the issues we'll discuss from Funk to life:



Non-delegation Doctrine Issues (Can the Legislature delegate powers to the President/Agencies?)


  • Can Trump "build the wall"? After Trump's "emergency declaration" diverting military funding to build a wall stretching along the southern border of the U.S. One challenge considered by those wanting to prevent the re-allocation of the military funds is to claim that 50 U.S.C. 1621 (the statute under which Trump declared the emergency) unconstitutionally delegates Congress's legislative powers to the President. Based on the case law and supplementary materials we've read about the non-delegation doctrine, do you think this claim is likely to succeed? Here are some thoughts on this question.

  • In 2018, SCOTUS heard a challenge to the "intelligible principle" test in Gundy v. United States. Gorsuch would like to reinvigorate the non-delegation doctrine to prevent "delegation run riot," but despite his blistering dissent in Gundy v. United States, the doctrine holds.


Legislative Veto and the Congressional Review Act


While we learn in Immigration and Naturalization Service v. Chadha that legislative vetoes are unconstitutional, the Trump administration has used laws like the Congressional Review Act of 1996 (CRA) to intervene, post-hoc, in agency decisionmaking. Prior to the Trump administration, the CRA was only successfully invoked to overturn a regulation one time in its legislative history. Since 2017, the CRA has been used to try to reverse more than a dozen regulations. Here are some examples of joint resolutions providing congressional disapproval per the CRA. (You can see that many of the resolutions did not pass.) Some believe that the Congress should get rid of the CRA, calling it a "legislative gimmick". What do you think about this law and its impact on federal regulations?


Appointments & Removals: Superior & Inferior Officers - Who's Who?


Required Reading (Lucia):


The syllabus lists both Lucia and PHH Corporation as required reading for this section of our course, but due to time constraints, we will only analyze Lucia in class. Both cases deal, in part, with Presidential appointment and removal powers.

  • Lucia focuses on whether ALJs are superior officers who must be appointed by the President or inferior officers whose appointment can be delegated by Congress to the Presidents, Courts, or a Department Head.

  • PHH Corporation focuses on whether the CFPB's organic statute, which provides that the agency's director gets a 5 year term in office, subject to removal by the President only for “inefficiency, neglect of duty, or malfeasance in office,” is consistent with Article II of the Constitution, vesting executive power in the President to "take care that the laws be faithfully executed."


What office dramas can't be solved with donuts?

Of course, as most SCOTUS cases do, PHH Corporation v. CFPB has political underpinnings. Here is some history on the CFPB, an agency created in the wake of the housing crisis to hold financial institutions accountable for consumer protection. After the Trump Administration was elected, the head of the CFPB resigned. Before resigning, he appointed Deputy Director Leandra English to replace him as head. At the same time, Trump picked his own head of the CFPB, Mick Mulvaney. Both newly appointed head asserted their leadership, and Mulvaney showed up at the CFPB offices with donuts for staff and drama ensued (see the Twitter play by play in this Buzzfeed article). Mulvaney sent a memo to CFPB staff telling them to "disregard any instructions you receive from Ms. English in her presumed capacity as Acting Director," while Leandra English continued on. English filed a lawsuit but eventually resigned and dropped the lawsuit

when Trump nominated Kathy Kraninger to head the agency in 2018.




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