Class 20 Overview, Primary Lecture, and Takeaway Video.docx...

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Overview Separation of Powers Doctrine in connection with the administrative state. o (1) Nondelegation Doctrine. o (2) Removal Power Doctrine. Removal Power Overview Article II of the U.S. Constitution o Charges the President with taking care the laws shall be faithfully executed. o Vests the President with the executive power of the United States. The power of carrying into effect, administering, implementing, and enforcing the laws of the United States. To carry out the powers of the President listed in Article II today, the President must have some way to control the massive federal bureaucracy. o Bureaucracy = Day-to-day machinery of the federal government of the U.S. o President has two principle tools for supervising and controlling the federal bureaucracy (MULTI- LEVEL/STACKED USE OF FOR-CAUSE REMOVAL RESTRICTIONS) (1) The Article II power granted to appoint principle officers. The supervising officers who oversee the vast number of federal agencies and departments that come within the President’s executive power. (2) The Article II power to remove those officers. This power isn’t explicitly specified in the text of the Constitution but has historically been understood as being implied in Article II (by the President’s executive power, duty to care, and the laws of the U.S. be faithfully executed). o It’s been understood and implied the President must have the power to remove principle officers of executive branch agencies to ensure those officers are acting in service of the President’s own policy vision. Controversy with this power is whether, and to what extent, Congress can restrict (and place limits) the removal power of high-level agencies officials. This can be done usually be requiring the President to demonstrate good cause for dismissal. o The constitutionality of the good-cause removal restrictions might sound like a mundane human resource issue, but constitutional and practical stakes of this are extremely high. o This requirement prohibits the President from dismissing heads of executive branch agencies simply because of their political disagreements with the President’s preferred policy. When such an officer controls an important federal agency (i.e. Security and Exchange Commissions; Federal Trade Commission; Federal Reserve, etc.), the President has less practical power to direct the way these agencies execute the laws. o Argument of Congress’s power to impose good-cause removal restrictions for the President (in favor of good-cause removal restrictions) = They allow agencies to make rules based on impartial technical expertise and to conduct adjudications without political taint/influence. o Arguments against good-cause removal restrictions = They reduce the responsiveness of executive branch agencies to majoritarian control. This, in turn, makes the good-cause removal restrictions increase their susceptibility of administrative agencies to special interest influences. They do this by making the channels of influence more obscure, complicated and costly.

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