Impermissibly burden press power to controlsupervise

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Fundamentals of Business Law Today: Summarized Cases
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Chapter 2 / Exercise 03
Fundamentals of Business Law Today: Summarized Cases
Miller
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“impermissibly burden” Pres’s power to control/supervise IC. Pres has enough control over IC because of his removal power. I. Relied partly on Wiener v. U.S .: statutory silence did not confer unfettered removal power on Pres, even for exec positions II. Rejected Humphrey “quasi” reasoning; asked instead if “the removal restrictions are of such a nature that they impede the Pres’s ability to perform his constitutional duty”—purely functional test: 1) Is Pres need to control IC “so central to exec branch f’ning?”—NO 2) Can Pres ensure laws faithfully executed w/ tenured officers?—YES III. Factors showing that removal restriction does not impermissibly burden Pres power to control/supervise IC: (1) limited jurisdiction & tenure; (2) absence of “policymaking authority”; (3) AG’s power to remove for “good cause,” which could extend to “misconduct” 1) “Good cause” is really a paper tiger. Court using canon of avoidance. C. Dissent (Scalia): Too functionalist. Dangerous to separation of powers. I. Vesting clause ALL exec power in Pres. At least Humphrey’s agreed. There are now no lines. Now Congress can insert independent officers into all areas of executive branch. Correct . II. Pres removal power = control “like referring to shackles as an effective means of locomotion” III. Requirement to follow DOJ policies “empty promise” b/c of “possible” limitation—policies involve discretion 22
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Fundamentals of Business Law Today: Summarized Cases
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Chapter 2 / Exercise 03
Fundamentals of Business Law Today: Summarized Cases
Miller
Expert Verified
vi. Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)— single-layer protection + weak remedy. **Note private non-profit corporation but still gov’t under Lebron . A. PCAOB members removable for cause by SEC Commissioners (very narrow power—limited causes—strong tenure protection) / double-layer of protection assumed w/o deciding that SEC has implicit tenure protection (or else statute would not have constitutionality issue) (Breyer contests this) B. Held: More than one level of good-cause protection violates vesting & take- care clauses. I. Bright-line rule (cf. Morrison ). Scalia happy. II. Note doesn’t bar dual-layers of independent officers as long as Pres has removal authority. If Pres had direct line to PCAOB, all would be ok. C. The rest is dicta I. “Assuming w/o deciding” leaves open question re: whether multi-member commissions without statutory tenure protection implicitly have tenure protection (probably not) II. Rehabilitation of some Myers dicta—Pres must have “general administrative control over those executing the laws.” PCAOB & SEC viewed as clearly involved in executing the laws. III. Added layer of protection makes a difference. Suggests 2-layer tenure protection strips Pres of his power to hold subordinates accountable. IV. 5 layers hypo—gov’t wouldn’t say even that was too many V. We can have a gov’t that functions w/o being ruled by functionaries VI. Pres not “cajoler in chief” VII. Mere power to overrule Board is not sufficient to control it. VIII. Questioned Landry If wrong and ALJs are officers, their tenure protection unconstitutional under this case. Not if Landry is correct. D. Weak remedy—limited declaratory relief E. Dissent (Breyer): textualism doesn’t work (try functionalism); typical policy

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